Three Hundred Years Since the Statute of Anne, from 1709 to Cyberspace
Edited by Lionel Bently, Uma Suthersanen and Paul Torremans
Chapter 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 formalities 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 protection 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 enjoyment of the rights granted to its nationals by the law of the place of protection 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 condition 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 are independent from the existence of protection in the country of origin of the work, except if it...
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