Copyright Registration and Documentation Systems

The prohibition of formalities for copyright protection is the result of a historical process.  Before the 1886 Berne Convention, each country had its own rules for recognition of copyright in a work.  Consequently, authors had to comply with formalities on a country-by-country basis.  The Berne Convention introduced the principle that authors in Union countries need only comply with the formalities imposed by the country of origin of a work.  This rule was replaced in the 1908 Berlin revision of the Convention by the current principle of formality-free protection, reflected in Article 5(2) of the present Paris Act 1971, according to which the enjoyment and the exercise of copyright shall not be subject to any formality.

While respecting the principles established in the Berne Convention, several Berne Union members have established voluntary national registration systems for copyright and sometimes also for related rights.  In the view of these Member States, registration facilitates the exercise of copyright and related rights, by providing right owners with a simple and effective means to clearly establish authorship and/or ownership of rights.  National registration and recordation systems often hold valuable information on creativity, both from a legal and economic standpoint.  As an office of record, a copyright registry can make available certificates of registration, certified copies of registry documents that provide, with varying legal effect, important information on a work or other subject matter, its author or, through a documented chain of transfer, its present ownership.  Registration can also help to delimit the public domain, and consequently facilitate access to creative content for which no authorization from the right owner is needed.  The information contained in national registries is not only valuable in legal and economic relations but may also serve the public interest by providing a source of national statistics on creativity and culture.  Finally, national registries may constitute a repository of cultural and historical heritage, as they represent collections of national creativity, including works and other creative contributions.

In recent years a number of issues have been raised concerning registration of copyright and related rights in the evolving digital environment.  With the advent of digital technology, the overwhelming flow of content and multiplying scores of creators , often completely unidentified, justifies a renewed interest in readily available and accurate  ownership data and therefore in documentation and recordation under different forms. Some commentators have highlighted the important role that registration could play beyond its traditional functions in facilitating the exercise of rights, i.e. as a means to prove the existence of the work and/or its ownership.  In this context the focus has been placed on the potential for registration to address some of the problems related to use of creative content including in regard to works in respect of which the copyright owner can not be identified or located (often termed “orphan works”) .  Moreover, identification of the work or other subject matter can be complex as digital technology allows content to be recast into a variety of forms, while multimedia production combines completely different types of subject matter into a single embodiment.  While there are many ways to locate a copyright owner it is clear that for countries where a registration system exists, search of registrations could play a conspicuous role in both locating the copyright owner and in assessing whether sufficient efforts have been made to that effect.

The absence of voluntary national registration systems, together with the lack of communication or interaction among them, results in a highly asymmetric international scenario.  Moreover, voluntary registration is very different from one country to another including systems where the work is actually deposited (registration) and others where only declarations are submitted, without deposit of the work (recordation). Some countries have expressed the need of a greater interaction among voluntary registration systems.

The WIPO Committee on Development and Intellectual Property has approved, as a way to implement the WIPO Development Agenda a Thematic Project on Intellectual Property and the Public Domain, which provides inter alia for the elaboration of a Survey on Voluntary Registration and Deposit Systems under copyright.

Moreover, the role of Rights Management Information (RMI) has tremendous potential for identifying and locating content.  RMI is increasingly used in the networked environment, which helps users to customize their searches, find the content they are seeking, and where appropriate, enter into licensing agreements with right owners. With the support of increasingly sophisticated RMI, a number of private entities collect data on copyright status and ownership for different purposes, including collective management societies and private registries. Different approaches to the data collected and its availability are followed as some entities, such as Collective Management Organizations (CMO), collect data for their members with the objective of managing the rights entrusted to them, while others undertake data collection as a commercial operation for third parties. In some cases the task of providing a record of transactions and declarations by third parties is limited to a closed number of stakeholders or to the digital environment.

As part of the Development Agenda thematic project on IP and the Public Domain a Survey of Private Copyright Documentation Systems and Practices: (a) Private Registries (b) Collective Management Organization's Databases, is also under preparation.  This would cover the use of copyright documentation, including in the form of RMI, by entities such as collective management organizations or the Creative Commons System, and would examine how these systems identify, or might contribute to identifying, content that is protected or in the public domain. Also under the same Development Agenda project a Conference on Copyright Documentation and Infrastructure was organized following completion of the two Surveys mentioned above and other initiatives.