Lipszyc, Delia --- "Historical Appearances and Disappearances of Formalities: From Berne to National Laws" [2010] ELECD 523; in Bently, Lionel; Suthersanen, Uma; Torremans, Paul (eds), "Global Copyright" (Edward Elgar Publishing, 2010)

Book Title: Global Copyright

Editor(s): Bently, Lionel; Suthersanen, Uma; Torremans, Paul

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848447660

Section: Chapter 28

Section Title: Historical Appearances and Disappearances of Formalities: From Berne to National Laws

Author(s): Lipszyc, Delia

Number of pages: 28

Extract:

28. Historical appearances and
disappearances of formalities: from
Berne to national laws
Delia Lipszyc*

1 THE BERNE CONVENTION

The Berne Convention played a substantial role, the results of which are
clearly visible in practice, in getting the principle of the absence of formali-
ties as a condition for the grant of copyright protection from the moment
during the 1908 Berlin revision when the following provision, that has
remained unchanged since, was introduced in Article 5.2: `the enjoyment
and the exercise of those rights shall not be subject to any formality'.
But the situation was different in the original version of the Berne
Convention in 1886. That text established the dependence of the protec-
tion on the protection established in the country of origin of the work (the
subordination of the principle of national treatment to compliance with
the conditions and formalities of the lex originis). Thus the right of enjoy-
ment of the rights granted to its nationals by the law of the place of protec-
tion was subordinated to compliance with the conditions and formalities
prescribed by the legislation of the country of origin of the work.
It was not until the Berlin revision of 1908 that the criterion reverted in
favor of the application of the territorial law: on one hand, every condi-
tion relating to compliance with formalities was abolished and, on the
other hand, the principle of protection independence was consolidated,
establishing that the enjoyment and exercise of the rights acknowledged by
the territorial law ...