Lanterna Rally

Author: Severine Dusollier

Publisher:

Published: 2012

Total Pages: 0

ISBN-13:

Many voices have been recently heard in favor of the reintroduction of formalities in copyright law, in order to counteract the rapid expansion of copyright protection and the ensuing diminishing of the public domain. Formalities have been considered as a way to limit the automatic granting of copyright, to shorten its duration or to make its enforcement less easy. This paper examines the relevance of a possible reintroduction of formalities for the enhancement and safeguarding of the public domain. It first considers the formalities the introduction of which (or reintroduction in some countries) has been proposed, under two lenses: their validity under the Berne Convention, and their relevance to promote the public domain. It concludes that formalities based on a registration or renewal process have the effect to grant protection to works considered by their copyright owner to have some market potential. Thereby, it espouses a peculiar view of copyright where protection would only be granted to those works with a commercial value. In that narrative, works with no interest to the public - or at least none recognized by the market - will fall into the public domain. Is this really the kind of public domain that we would like to build? More relevant to enhance public availability of works would be to impose some publicity to the transfer of the copyright title, for instance through recordation in public registers, as well as formalities conditioning additional protections of copyright, such as protection against the circumvention of technological measures. As an overall conclusion, this paper argues for the retention of some formalities and explains their potential for enhancing access to and dissemination of knowledge without impairing authors' rights. Formalities might have another effect on the public domain, if conceived differently. Indeed, formalities could be imposed to secure the relinquishment of one's work into the public domain as an opt-out mechanism. Such system of reverse formalities would remove the existing uncertainties, at least in countries with a moral right, about the possibility to give up copyright in a work. It would also guarantee the public domain status of a work for potential users.