Berne-Forbidden Formalities and Mass Digitization

This Essay addresses the Berne Convention\u27s 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. In the Berne context, enjoyment means the existence and scope of rights; exercise means their enforcement. Voluntary provision of copyright notice and of title-searching information on a public register of works and transfers of rights is fully consistent with Berne and should be encouraged. But the Berne Convention significantly constrains member states\u27 ability to impose mandatory formalities on foreign authors. I specify foreign authors, because the Berne Convention\u27s minimum substantive norms (including the no-formalities rule) do not apply to domestic authors in the work\u27s country of origin. Most often, however, member states tend not to impose disabilities on their own authors from which they spare foreign authors, so I will assume that the measures that I examine would in fact bear equally on domestic and foreign authors. I have elsewhere addressed means through which member states may or may not achieve some of formalities\u27 notice-giving and title-searching objectives. Those means include obligations to record transfers of title to exclusive rights under copyright, and, more controversially, conditioning Berne+ protection of subject matter, remedies, or rights on front-door compliance with notice and registration formalities, or back-door exercise of opportunities to opt-out of an otherwise applicable and Berne-permissible exception or limitation. In this Essay, I will further develop the question of whether Berne member states may, consistently with article 5(2), achieve the goals of copyright exceptions or limitations by presuming authorization of the copying or communication to the public unless the author opts out of the authorization. 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). It then addresses declaratory measures that Berne explicitly authorizes, as well as those of more questionable conformity with treaty norms. Part II takes up the relationship between formalities and copyright exceptions, particularly in light of laws or proposals to facilitate mass digitization through opt-outable presumptions of authorization to digitize and disseminate