stop confiscation of your property and Human Rights in the UK Enterprise and Regulatory Reform Bill

Stop43's reply to Professor Hargreaves, Part Two

In further response to Professor Hargreaves’ comments on the IPO blog:


Professor Hargreaves says:

‘[Paul] thinks that it [the Digital Copyright Exchange] will breach the Berne Convention by making copyright protection conditional on participation. The report is clear that rights holders should have all the protections they have now, whether participating in the DCE or not. As a benefit it suggests that DCE participation should bring ADDITIONAL entitlements for rights holders, as well as the greater access to, and thus potential to license, their works.’

His report suggests on Page 33:

  • providing that remedies, for example damages, are greater for infringement of rights to works available through the licensing exchange than for other works;
  • making DEA sanctions apply only to infringements involving works available through the exchange

Article 5 of The Berne Convention, to which the UK is signatory, states:

(1) Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention.

(2) The enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. Consequently, apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed.

(3) Protection in the country of origin is governed by domestic law. However, when the author is not a national of the country of origin of the work for which he is protected under this Convention, he shall enjoy in that country the same rights as national authors.

The central ideas in Article 5 are that you can't treat people from other countries worse than you treat your own, and this equality of treatment must not be subject to formality.

Berne says nothing about allowing foreigners only some of the rights that nationals have, because nationals must register to gain further rights such as greater damages for infringement: Berne 5 merely says ‘the rights’, which must be accorded ‘without formality’.

That DCE registration would offer important benefits - among them guaranteed parentage - in practice is in no doubt, but It follows that under his proposal, foreigners will have to register in order to enjoy the same levels of protection in law as UK nationals, and registration is a ‘formality’. Professor Hargreaves’ coercive legal proposals would therefore discriminate against foreign rights-holders, and in so doing breach Berne Article 5.

It could be argued that DCE registration would not discriminate against foreigners if, without formality, they are accorded the right to register. Informed legal opinion appears to be divided, which is why there is no legal consensus about whether the statutory damages available for infringed works registered with the US Copyright Office breach Berne or not, and there is no international case law to settle this matter.

The intention and spirit of the Berne Convention is that creators must hold their rights ‘without formality’. Two-tier copyright systems based upon registration clearly go against the intention and spirit of Berne.

The USA, which signed the Treaty in 1988, is the only Berne signatory that has a two-tier copyright system. Stop43 has been informed by international IP lawyers that the continuation of the USA’s existing registration system was the political price paid by WIPO to gain the USA’s signature to the Treaty. The UK is already signatory and bound by its Terms, and can be expected to pay a political price for breaching them.

Given this uncertainty over the legality in international law of two-tier copyright systems, the UK should err on the side of caution and not deliberately create one here.