In Reed Elsevier v Muchnick some publishers started digitizing newspaper and magazine articles without the permission of the authors (mmm…this reminds of another case…); as a result they got sued by a group of journalists who brought the claim as a class action. Most of the claimants had registered copyrights but some of them had not. One of the questions was whether those journalists who had not registered their copyright enjoyed intellectual property protection and thus had the right to sue for infringement of such intellectual property.
The Court specifically said that it was not addressing the question of whether district courts may or should dismiss copyright claims involving unregistered works… too bad! It seems to me that the Supreme Court of the United States has missed an opportunity to support the requirement to register copyright. If the U.S. had pushed on this issue, maybe the European Commission would have been influenced to modify its approach to registration of copyright.
The Berne Convention does not make registration as necessary for a work to enjoy protection (art. 5(2)); this is probably why, until now, the European Commission has taken this limitation as an excuse for its inactivity on the matter. On the contrary, I believe that registration should be supported; rights-holders would be easily identifiable, thus making it easier to provide legal access to material – the more legal access there is, the fewer reasons there are for people to opt for illegal ways. If there were a register of the copyright on an international level, it would be much easier to trace works and enforce authors’ rights as well. Will we now have to wait for another case to change things?
Post written by Francesca Re Manning, consultant to CAS-IP