'With Untired Spirits and Formal Constancy': Berne-Compatibility of Formal Declaratory Measures to Enhance Title-Searching
Formalities are back in fashion. Their acolytes fall into two camps, reflecting their different objectives. For formalities, which we shall define as conditions on the existence or enforcement of copyright, can divest authors of their rights, or instead enhance authors’ exploitation of their works by alerting their audiences to the authors’ claims. For one camp, formalities’ confiscatory consequences, once perceived as barbaric, are to be celebrated. A second camp enlists formalities to populate not the public domain, but the public record. Notice, registration and recordation, as declaratory measures, inform the public of the author’s claims and, by facilitating rights-clearance, help the author disseminate and derive compensation from her work. I prefer to call title-searching information “declaratory measures” rather than “formalities” because only “formalities,” in their Berne Convention sense, entail the loss of copyright or the limitation of remedies. The aspirations of the second camp tend toward information rather than confiscation, but many may be concerned that only the threat of the latter will impel provision of the former. The perceived need to give title-searching measures teeth by penalizing authors who fail to declare or to register their claims allows the rhetoric of reformalization to conflate formalities’ two distinct goals. Recognizing that the “good cop” face of formalities tied to title-searching may attract more followers than the “bad cop” function of expropriating authors, some reformalizers may offer the kinder, gentler rationale of reducing search costs in support of declaratory obligations whose non fulfillment will confiscate the copyright. Not all the laments about high transactions costs, however, withstand analysis. For even were authors easily found and negotiations simplified, the real problem for many enthusiasts of formalities is having to transact at all, when in their view the object of the proposed translation should not, or should no longer, be protected in the first place. This paper addresses the Berne Convention’s prohibition on the imposition of “formalities” on the “enjoyment or exercise” of copyright, and the compatibility with that cornerstone norm of declaratory measures to enhance title-searching. In the Berne context, “enjoyment” means the existence and scope of rights; “exercise” means their enforcement. Voluntary provision of title-searching information on a public register of works and transfers of rights is fully consistent with Berne, and should be encouraged. But may a member State impose sanctions or disabilities for failure to supply that information? The first Part of this paper will address conditions on the existence or enforcement of rights. I conclude that “formalities” prerequisite to the initial attachment or persistence of protection, or that limit the scope of minimum rights or the availability of remedies, violate the norms of Berne and subsequent multilateral instruments. By contrast, it may be permissible to condition “Berne ” subject matter, rights, or remedies on compliance with declaratory measures. The “Berne” path, however, risks descending into controversies of characterization, as one contender’s “plus” proves another’s “minimum” norm. The second Part of this paper will consider declaratory measures regarding ownership of rights under copyright. The Berne Convention generally does not cover copyright ownership, and one may urge that conditions on who may enjoy or exercise rights are a matter distinct from disabilities imposed on existence or enforcement in general. Accordingly, sanctions against the failure to provide information pertaining to the transfer of rights should be Berne-compatible. Specifically, I propose making the validity of a transfer of copyright depend on the transferee’s recordation in the Copyright Office of “a note or memorandum of the transfer” containing sufficient information to permit third parties to ascertain who owns what rights in the work. The second Part then endeavors to resolve some of the practical problems a mandatory recordation of transfer obligation might engender. These include time limits for recording the transfer, gaps in the title-searching record, and effect on transfers of rights in non-U.S. works when the United States is one of the territories covered by the grant.
A Bipolar Copyright System for the Digital Network Environment
The article describes a future copyright system for the Internet according to which the copyright owner is free to choose between exclusive exploitation on the basis of digital rights management and a business model where users may lawfully share the work for non-commercial purposes in peer-to-peer networks in exchange for an indirect payment through a levy or tax. This model is derived from an analysis of current proposals pleading for an adoption of levies or taxes in the digital network environment. The article explains that all of these currently discussed models violate international treaties on copyright (the Berne Convention, the TRIPS Agreement, the WCT), because they fail to acknowledge that these treaties mandate exclusive rights and anti-circumvention provisions as the statutory default in national copyright law. However, national copyright law would be compliant with these treaties if it left exclusive rights plus anticircumvention rules intact but gave copyright owners an incentive to opt for compensation without control by establishing a levy or tax system that was only available for those right holders who voluntarily registered their works for this alternative compensation system. As the article shows, such a bipolar copyright system (exclusivity on the one hand, a levy or tax system on the other) would address most of the concerns articulated by copyright pessimists without denying authors the right to decide about the use of their work on the Internet. Most importantly, it could be implemented immediately without having to amend international copyright law.
Drug Testing in Public Agencies: Are Personnel Directors Doing Things Right?
The results of a survey of 300 public agencies personnel directors are reported. The report describes the drug and alcohol testing policies and procedures now used by these respondents. The implications of the survey results are evaluated in terms of critical issues of personnel management practice and public policy: (1) the protection of employees' constitutional rights, (2) the public's right to an effective public service, and (3) management's need to reduce liability risks and to increase program effectiveness.