Sunday 11 March 2012

Formalities in Copyright Law: a new book

One of the most surprising book titles to cross this reviewer's desk in recent times is Formalities in Copyright Law. An analysis of their history, rationales and possible future, by Stef van Gompel. The surprise is that, having been schooled in the prevalent sentiment of the past half century that formalities are a historical relic, he has found in this book a well-argued case for their fresh and objective evaluation, if not their immediate relevance. According to the publishers (Wolters Kluwer Law & Business):
"At present, copyright is ‘automatic’. From the moment an original work is created, the author enjoys all the benefits that copyright protection entails, without the need to complete a registration, deposit the work, mark it with a copyright notice, or comply with any other statutorily prescribed formality. However, the digital revolution has caused a paradigm shift in the way copyright-protected works are created and consumed. Copyright law is now facing significant challenges arising from the need to establish legal certainty over copyright claims, improve rights clearance, and enhance the free flow of information. Inevitably, proposals to introduce formalities in copyright law (or reintroduce them, as the absence of formalities has not always been the norm) have risen to prominence in legal debate. This book examines whether reintroducing copyright formalities is legally feasible. Based on a comprehensive and thorough analysis of copyright formalities, it sets out to establish the extent to which the current copyright system allows for their reintroduction. To this end, the author describes the role and functions of formalities, revisits the history of formalities at the national and international levels, examines the scope of the international prohibition on formalities, and scrutinizes the rationales behind this prohibition, including an in-depth examination of the validity of the argument that copyright is a ‘natural right’ and therefore should be protected independently of formalities.

The author skilfully evaluates and contrasts the conflicting theories according to which formalities, on the one hand, add legal certainty to claims on the ownership of property, and, on the other, hamper individual authors from seeking adequate protection for their works. This book makes an important contribution to legal science by answering questions that so far have been neglected or only marginally addressed. To the degree that current copyright law permits reintroducing formalities, the author posits the specifications that will determine to a great extent what role and functions they may eventually fulfil: depending on the aims to be achieved, lawmakers must choose which types of formalities shall be imposed, and what their legal consequences shall be. This book goes a long way towards reinforcing the foundation for those decisions".
This book certainly delivers what it promises, though the author perhaps cautiously limits himself to the legal, philosophical and theoretical aspects of his subject. What would be fun would be to project his analyses into real-life scenarios and to show how reintroduced formalities, in respect of different types of copyright subject matter and different markets, might be handled by users of the new technologies -- both commercial and social -- which enable copyright owners, collecting societies, businesses and private users to identify works and their owners and then to monitor or exploit them.

Bibliographic data: hardback, xiv + 346 pages. ISBN 9041134182; ISBN 13: 9789041134189. Price £95. Book's web page here.


Andy J said...

This sounds like a timely publication, given the current discussions about a UK Digital Copyright Exchange and projects such as Arrow within Europe, which may well become de facto forms of registration in the future. It's rather unfortunate that at £95 this is unlikely to be a book I would buy just to learn more about the historical/ theorectical aspects, which I suspect many people involved with copyright will already be generally aware of. I agree with Jeremy's suggestion that it might have been worthwhile including some discussion which examined how (re-)introducing formalities could impact on copyright today.

Joren De Wachter said...

As I've written in my own blog posts, it is quite clear to me that registration of copyright is the elephant in the room in most discussions about it.

It would solve a lot of issues, including how to set up an exchange (i.e. Digital copyright Exchange coming out of Hargreaves report), but also in terms of establishing chain of title etc.

In a digital world, copyright without registration will struggle to remain relevant.

more info:

Eleonora Rosati said...

The role of formalities has been recently discussed also by the US CPP (Copyright Principles Project -

There, Prof Pamela Samuelson and the other Members highlight how the current lack of any obligations upon authors to give notice to the world about their claims of copyright – either by placing notices on individual copies of their works or by registering their claims of copyright with a government office – has contributed to substantial difficulties in tracking down who owns which rights in which works.

In particular, these difficulties are said to impede many socially desirable uses, including some that would be licensed if it were easier to find the appropriate rights holder.

Eleonora Rosati said...

Also William Patry in his How to Fix Copyright has recently advocated some formalities be reintroduced in US copyright

john walker said...

Search engine 'robot crawlers' such do not, in the first place, index web pages that begin with the 'robot text' protocol. Rather than compulsory registration why not legally formalise the robot text protocol and leave it to digital authors to use it or not according to their individual situations.