Copyright Registration: “Upside-Down” Inequality
Further to our last post of January 24, 2017, we return to the final topics of registration of copyright in Argentina.
Having clarified the issue of which rights are suspended in my previous article,when not complying with the registration, the rule mentioned in Article 57 of the Argentinian Law 11.723 raises two new questions: If the registration of all published work is mandatory, does the registration then constitute copyright? Is this rule unconstitutional and contrary to international treaties?
Regarding the first point, the National Chamber of Civil Appeals in 2003, in the case “Ruiz Vigil, Encarnación vs. Productions Publiexpress,” has developed a conciliatory response by determining that the author’s right over his work arises undoubtedly from its creation. In this sense, the National Chamber determined that the only effect of non-compliance with the registration is “the suspension of the patrimonial right, allowing the free use of the author’s work without any authorization or any payment”. In this way, the judges added in his resolution that“appears that the registration is not constitutive of copyright, but according to Article 63, is a requirement for its exclusive exercise.” Therefore, any author who wishes to exercise his economic right exclusively on his work published for the first time in Argentina must register every work.
In relation to the second enquiry, although the mandatory registration would not be contrary to the principle that the author’s right over his work arises undoubtedly from the creation of the same, as we explained above, part of the doctrine and jurisprudence considers this unconstitutional. If we consider that Argentina has been part of the Berne Convention since 1967, which states that no formality is necessary to enjoy and exercise all copyrights, together with the reform of the national constitution in 1994 that establishes the supremacy of the international treaties over the national laws, then the suspensory effects of the Article 63 would be contrary to these precepts. Although there is still no unified thinking on this point, the jurisprudence has been oriented to apply international agreements to domestic situations when there is an unjustified delay in adapting national legislation.
Finally, it remains to be analyzed on what works this registration obligation falls. As we mentioned in our first paragraph in relation to Article 57, the compliance of registration only falls on national works, excluding the foreign works. In this sense, it is understood as a national work those where the first publication was in Argentina. Therefore, the Berne Convention would apply (provided the country of publication is a member) for foreign works, and so the author is not obliged to comply with the requirements of Article 57. This is reaffirmed by Article 13 of Law 11.723, when it states that “All provisions of this Law, except those of Article 57, are equally applicable to scientific, artistic and literary works, published in foreign countries, regardless of the nationality of their authors, provided that belong to nations that recognize the right of intellectual property.”
Therefore, it is in front of this difference between national and foreign works in which the doctrine calls “inequality” in reverse for the works that were published in Argentina.If foreign works are protected in our country without any formality, then Argentine citizens should enjoy the same benefit. Otherwise we would face a violation of Article 16 of the National Constitution that establishes equality before the law.
After analyzing the obligation of register copyright in Argentina regarding all of the above cited issues, we understand that the most important points to take into account are the following:
- Registration is obligatory for works publish for the first time in Argentina;
- The National Copyright Office is the corresponding entity in charge of the register;
- The obligation to register must be fulfilled within three months of the publication of the work;
- The registration is not constitutive of author’s right over its work; it is only a formality, whose fulfillment guarantees the full enjoyment of the patrimonial rights over the work;
- The lack of registration of any work published for the first time in Argentina suspends the exclusive right to exploit the work of any author, enabling third parties to use it without their authorization and a prior payment;
- The registration gives a certain date to the creation of the work and reliable proof of authorship in front any kind of conflicts;
- Any circumstance that refers to the work, such as contracts and decisions of the courts over them, must be recorded to be effective against third parties.
Source: Villalba Carlos A. – Lipszyc, Delia, “Copyright in Argentina”, Buenos Aires,La ley, 2009.