Copyright Registration: “Upside-Down” inequality
OPINION by Maria Sol Porro
In copyright, it is a well-known principle that every work has been protected since its creation. This power is not subject to any formality. In addition, the Berne Convention for the Protection of Literary and Artistic Works, promulgated in Argentina in 1967, states that “the enjoyment and exercise of these rights [copyrights] shall not be subordinated to any formality.” However, the Argentinian copyright law No. 11,723, provided in its Article 57, states the compulsory registration of all published national works, thus generates controversy in several areas.
First of all, we must determine that the above mentioned Article 57 states that the national publisher has the obligation to register the complete copies of any “published work” in Argentina, within three months of its publication. As a published work it being understood “those who have been published with the consent of its authors […] and being available to the public (Art.3 – Berne Convention).” In this sense, it is ruled out that registration is compulsory for unpublished works, and the registration of these works is voluntary. Therefore, we find the first controversy about the character “public” of a work, due to the fact that a work is not considered “published” by the mere fact of being communicated or made known to the public. An example, is the university thesis presented to a limited set of people.
Secondly, a new conflict arises regarding the consequences of non-compliance with the registration of works published at the national level. As stipulated in Article 62 of Law 11.723, compliance with the registration obligation guarantees the copyright of the author’s work. Therefore, it is understood that in breach of this obligation, the author ceases to hold the exclusive right to his work, and in addition will be fined. However, this suspension only covers the economic or patrimonial right of the author. To clarify, this means that third parties are entitled to reproduce, edit and execute, without prior authorization and payment to the author. Therefore, the suspension of the economic rights does not affect the moral right as no third parties can make any modification to the work or omit the author’s name.
As the discussion becomes more interesting, I will analyze the last two points in my next post.
To be continued …
Source: Villalba Carlos A. – Lipszyc, Delia, “Copyright in Argentina”, Buenos Aires, La ley, 2009.