Resurrecting copyright formalities: No 'deadly' human rights implications

Abstract

This paper argues that resurrecting copyright formalities is justified from a human rights perspective, especially in the context of Article 15(1)(c) of the International Covenant on Economic, Social and Cultural Rights. Copyright formalities were abolished in the early twentieth century. Since then, the copyright system has operated without formalities, copyright protection existing from the moment an original artistic or literary work is fixed in a tangible medium of expression. The abolishment of formalities has created new problems of orphan works and difficulties in making licensing arrangements. As a result, calls have been made to reintroduce copyright formalities. However, natural rights theorists and human rights activists have opposed this proposal on the ground that it will breach the human rights of creators. This paper contends that reinstating copyright formalities will not have any such human rights implications. It discusses the types and functions of copyright formalities before arguing that copyright formalities must be reintroduced because they provide legal certainty, will cure the problem of orphan works in the future, facilitate the clearance of rights and enhance the flow of information by enlarging the public domain. From a human rights perspective, formalities should be revived because the human right of property is subjected to formalities and by analogy, the enjoyment of human rights of creators can also be conditioned on formalities; patentees are also protected by art 15(1)(c) but patents are subjected to formalities; formalities will enhance the moral interests of authors and they will assist in achieving the balance in the fulfilment of competing human rights. However, if the new copyright formalities impose an unbearable economic burden on the authors and ignore the issue of unintentional non-compliance with formalities, the human rights of creators could be potentially breached. The paper concludes that copyright formalities should be brought back, albeit, in a revised and relaxed form so that they are human rights compliant.