Rejecting the conventional story that formalities in copyright law were abolished by the Berne Convention, this Article demonstrates that privately administered systems of formalities play a significant role in the administration of copyright law worldwide. Indeed, they must because copyright is designed to support a transaction structure which requires rightsholders who seek to attract licensing partners to go through some formal step to identify themselves and the works in which they have a legal or beneficial interest. Canvassing the landscape of mandatory and voluntary public and private systems of formalities, this article argues that: (1) national policymakers retain more policy authority under Berne to impose certain formal requirements on rightsholders than those with a formalist understanding of public formalities argue; (2) private systems of formalities are extensive, economically significant, but are not interoperable with each other in many cases and with voluntary registries and other voluntary public formalities systems; and (3) policymakers should use a mix of approaches to improve the functioning of both public and private formalities systems by promoting or requiring transparency, efficiency, and interoperability in their design and administration.
Carroll, Michael, 2014. A Realist Approach to Copyright Law's Formalities. PIJIP Research Paper no. 2014-01 American University Washington College of Law, Washington, D.C.