Berne-Forbidden Formalities and Mass Digitization

This Essay addresses the Berne Convention’s prohibition on the imposition of “formalities” on the “enjoyment and the exercise” of copyright, and the compatibility with that cornerstone norm of international endeavors to facilitate mass digitization, notably by means of extended collective licensing and “opt-out” authorizations. The Essay begins with a brief overview of the history of formalities conditioning the existence and enforcement of copyright, and the policies underlying their prohibition in Berne article 5(2). Next, it addresses declaratory measures that Berne explicitly authorizes, as well as those of more questionable conformity with treaty norms. It then takes up the relationship between formalities and copyright management, particularly in light of laws or proposals to facilitate mass digitization through opt-outable presumptions of authorization to digitize and disseminate. The Essay concludes that requiring the author to opt-out of a restriction on the scope of her exclusive rights violates the Berne Convention’s prohibition on subjecting “the enjoyment and the exercise” of her rights to compliance with formalities. The prohibition applies even when a member state provides rights that exceed the conventional minimum scope of rights. The Essay analyzes the practical and policy issues that underlie this conclusion. By contrast, Berne does not bar opt-out measures that pertain to the administration of authors’ rights by collective management organizations, particularly in the context of extended collective licenses. In this instance, the opt-out notice does not affect the existence and scope of the author’s rights. Rather, it goes to the licensing and management of authors’ rights, whatever their content or extent. Berne generally leaves unaddressed issues going to ownership, transfer and licensing of authors’ rights; member states may fill that gap, including by mandating or presuming the exclusive or nonexclusive grant of the author’s rights to a collective management organization. Two considerations will determine the effectiveness of those organizations’ grants of rights for territories beyond the works’ countries of origin. First, whether the author’s actual or presumed grant to the collective management organization included extraterritorial rights Second, whether the copyright-contract and private international law rules of the foreign countries for which the author granted rights will recognize the validity of the grant, particularly if the licensor’s authority to exercise the author’s rights in foreign states (including by means of reciprocal agreements with equivalent organizations in other states) derives from a presumption of transfer from authors who are not members of the licensing organization