Copyright formalities and the Berne Convention – Interview with Jane C. Ginsburg

An Interview with Jane C. Ginsburg which took place at Literature Digital, a conference at ‘Haus der Kulturen der Welt’ in Berlin, Germany. Jane C. Ginsburg is the Morton L. Janklow Professor of Literary and Artistic Property Law at Columbia Law School, and an expert on the questions of International Copyright Law. Two members of Humboldt Law School’s Internet Law Clinic, Lena Lickteig and Falko Rübekeil, met with her to talk about possibilities for the formalization of copyright.

Lena & Falko: Prof. Ginsburg, in one of your papers, you are answering to the claim that “formalities can supply the cure for all copyright ills”. Could you begin by telling us about the problems we are currently facing without formalities?

Ginsburg: The claim of those who think we should bring formalities back is that without formalities we might not know who the author is, we might not know when it was published, so that we cannot know whether the work is still protected, and if so, who holds rights in it. Worse, because copyright protects works regardless of their literary or artistic merit, copyright ends up covering many things which have no particular value. As a result, if we don’t have some mechanism for putting things into the public domain, and for informing people that they are free to use creations, everything will get locked up. When I said that formalities can cure all copyright ills, I want to make clear that is not my position, but it is a claim for some of those who would say that copyright protects too much stuff. According to this view, if we had formalities, then most stuff would go into the public domain because most people would not take the time or effort to put a notice of copyright on everything they’ve ever written, to register it with some governmental authority, to pay to register with some governmental authority. With formalities maybe 90% of everything people create would automatically be free. That would be one role of formalities.

In my view, this critique is vastly overstated because most if not all of that 90% is material that no one else would want to exploit anyway. For example, though you own the copyright in the little drawings you might make on the page when you’re bored in class, which means the public isn’t free to copy and disseminate your little drawings, I doubt there is a significant public demand for your drawings such that your copyright is frustrating the public interest in “access to culture.”

Another role of formalities is not to deny copyright protection but to help other people find the author, find the rights owner, discover the terms or conditions for obtaining permission to use the work if permission is needed.
There are thus two primary roles of formalities: One is confiscatory, in other words, one which takes away the author’s rights. And the other role is title searching, to identify who has the rights and how you can get permission to exploit the work.

Lena & Falko: So which formalities should we, or better, can we introduce within the framework of the Berne Convention? Its article 5 para. 2 states that „the enjoyment and the exercise of these rights [the ones granted under the Berne Convention] shall not be subject to any formality.“

Ginsburg: That’s the principal impediment to implementing confiscatory formalities, at least as to the treatment of foreign authors: The Berne Convention operates on the international level which means that if any member state, such as Germany or the United States, wanted to reinstate formalities as a way of depriving their own authors of rights in works, that is perfectly possible. What you cannot do is to deprive foreign authors of their rights in their works: The German author who does not put a notice of copyright ownership or does not register the work at the United States copyright office still has to be protected in the United States because the Berne Convention says that the existence and the enforcement of copyright cannot be subject to any formality. So from the point of view of the Berne Convention, that is, from the level of international law, there are many things which one cannot do, at least if the consequences of authors’ failing to comply with formalities is to deprive the authors of their copyright or make it difficult to enforce their copyright.

Lena & Falko: How about if we could change the Berne Convention? Would you then root for formalities?

Ginsburg: You cannot change the Berne Convention other than unanimously, and there is not going to be anything that over 165 member countries are going to agree to.

Lana & Falko: Of course it is going to be hard, but let’s assume we’ll change it and allow for formalities.

Ginsburg: That is not a fruitful assumption.

Lena & Falko: Instead, you are proposing subsidiary measures such as the introduction of formalities for the last 20 years of the copyright term, in order to achieve small changes in the law that could help us overcome the problems we are currently facing.

Ginsburg: The minimum term of protection is the life of the author plus 50 years. In many countries, like Germany, the term is life plus 70. So yes, it would be possible to make the last 20 years conditional upon complying with formalities. You could do that in respect with foreign authors as well as with respect to domestic authors. And that would be one approach to the very long terms of copyright which is not inconsistent with the Berne Convention.

Lena & Falko: Prof. Marco Ricolfi from the NEXA Center of Internet & Society takes another approach. He thinks that we should introduce a new, bifurcated copyright system: If you did not comply with any formalities, you would only obtain the right of attribution. If you wanted to obtain a copyright like the one we know today, you would have to use the copyright-c or something similar. Is this a kind of system we could aim for?

Ginsburg: Not consistently with the Berne Convention, no. Take Creative Commons as an example: Creative Commons is kind of a parallel universe which includes formalities in the sense that the set of icons that you choose tells people what they can and cannot do with the work. That’s purely voluntarily. There is no Berne Convention problem with Creative Commons because it is voluntary. But once you make those declarations mandatory, then you start having difficulties at the international level. Today, under the Berne Convention, once you create a work, it’s yours and you enjoy all exclusive rights from the work—subject to whatever exceptions or limitations exist under your national law—but you don’t have to make any declarations in order to enjoy international protection. What Creative Commons lets you do is to make a declaration to forgo protection or to specify which types of protection you want. That’s fine and that’s actually quite helpful. The Creative Commons default license is the attribution license. Lots of authors choose the license that permits only non-commercial uses and do not authorize derivative works (adaptations of the work). The basic intuitive copyright is: “This is mine and I want others to recognize that it is mine. I don’t want you to make money out of it without my permission, and I don’t want you changing it without my permission.” That is one set of possibilities under Creative Commons.

Lena & Falko: Do you think it would be possible to establish such a “hybrid” system without changing the Berne Convention because authors are given the copyright of attribution without him/her having to comply with formalities? So, in general, we decrease the level of protection. Only those who comply with formalities obtain a much broader right range of rights.

Ginsburg: I don’t see how you can do that because the Berne Convention imposes substantive minimum protections of economic rights, not just moral rights. So you have to protect the reproduction right, you have to protect the adaptation right, you have to protect the communication to the public right and you have to protect those rights for a vast variety of works of authorship. In addition to the minimum protections of the Berne Convention, there is also the requirement of national treatment which means that a member state cannot discriminate against foreign authors. So if a member state provides more protection than the Berne Convention minimum standards require, the member state must provide the same level of protection to foreign authors, and without formalities.

Lena & Falko: No formalities even for rights that exceed the standard of the Berne Convention?

Ginsburg: Yes, that is correct. Berne article 19 says that you can make a claim to a higher level of protection in a member state, but the article 5 para. 2 prohibition on formalities remains.

Lena & Falko: Another proposal to make copyright fit for the digital age and to ensure that not everything falls under copyright is to raise the requirements for protection. Do you think that could be a way for dealing with some of the problems we are facing today?

Ginsburg: For the EU it is not. The European Court of Justice has been pretty clear that the author’s own intellectual creation requires a relatively modest level of creativity. It is quite clear that the previously higher standard of creativity is not acceptable as a European norm. Never mind the Berne Convention: Just being part of Europe, you cannot do that unless the European Court of Justice changes its mind on the autonomous concept of originality.

Lena & Falko: Thank you very much, Prof. Ginsburg.

(L.Li., F.R.)

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