Comments for Is it possible in the U.S. to seek relief for copyright infringement immediately after having applied for registration? A matter of principle or just “a tempest in a tea pot”?

Question 1 : The main purpose of Copyright Law is to promote the creation of new artistic and original works, that are fixed in a tangible form, by protecting authors in their righs to use, copy, and publish their own works. Copyright law creates then exclusivity. The U.S. Copyright Act, in its subsection 411(a) developps two different theories of « registration » in order for an author to file a lawsuit for copyright infringement.
The first one is the « certification » theory by which the author must first wait that the Register of the Copyright Office has acted on the application of the applicant, to effectively file a lawsuit for copyright infringement.
The second one is the « application » theory, that only requires the author to send the required materials to the Office (registration fee, copy deposit, …).
As read in the Amicus Curiae wrote by the « ABA », « a copyright exists at the moment an original work is fixed in a tangible medium of expression, so regardless the fact that the owner actually registers his work in the Copyright office. We can then conclude that the « application » theory best complies with the nature of Copyright. But we must also include the role of registration in the debate. Registration makes the work of the applicant public, so that other people are aware of it. It’s then important that the registration is effective so that the author can fully benefit from his right to exclusivity.
We think that the « certfication » theory is the most adequate one in a case of copyright infringement in order for people to be informed of the protected work they can’t copy.

Question 2 : Copyright law doesn’t require any formalities because it refers to original works, creations, expressions of ideas, it must be protected as soon as it exists. The authors don’t always create something in order to make money out of it, they may not be aware of intellectual property law. Trademark law has a commercial dimension. The brands must be more cautious, they know they create something in the market and that it should be protected for commerical purposes. The financial issue are bigger in the tradermark law, it’s the role of the brands to be aware and protect their logos, slogans, …

Question 3 : The question can be discussed. In the U.S., the subsection 411(a) regarding the copyright clearly invites authors to introduce a formal application in order to get theirs rights protected. Even if the Supreme Court has previously considered that the « application » theory was admissible, this approach still requires some formalities. But the « ABA » claims that the position of the Copyright’s Office doesn’t bind the Courts… In conclusion, we would say that the US copyright’s law is not compatible with article 5(2) BC.

Question 4 : In the U.S., the subsection 411(a) is not adressed to authors of foreign works. So, they don’t need to register their work in order to get access to the U.S. Courts. If there is some kind of formal procedure regarding copyrights in Belgium, we think that the authors who create in Belgium must also register their works. Otherwise, it creates a form of discrimination between the Belgians who need to first go through formalities in order to get their works protected, and the others who can claim a copyright infringement without even have their works known by the public. We can also think of the situation where a foreigner copies intentionnaly a Belgian’s work by knowing that without having been to the Copyright’s Office, he can’t claim anything. The situation can be discomfortable and certainly leads to different protections for people who are in the same situation.

Question 5 : All actions regarding infringement of EU trademarks are under civil law pursuant to the EU Trademark Regulation and are heard by the EU trademark courts of the EU member states. Specific rules govern the jurisdiction and territorial scope of remedies granted by the EU trademark courts. Generally, the procedural rules of the member state involved will govern the proceedings.
Enforcement actions under criminal law (if counterfeiting is involved) may be brought at national level under the relevant national law. Criminal law enforcement rules for trademarks have not been harmonised in the European Union. As a result, the options available at European level for criminal law enforcement vary considerably.

Question 6 : Patents refer to an invention, whereas copyrights refer to the expression of an idea, such as an artistic work.

What is the approach (the ‘certification’ or the ‘application’ approach) that is more aligned with the purposes of copyright? The response of course requires to identify those purposes (so need to dig into a literal analysis of the above mentioned provision of the Copyright Act and of the “make registration” language). The response also requires to think about the role of registration – and the reasons for making the right to sue for copyright infringement potentially contingent on effective registration

The application approach is more of a lenient interpretation of the statute and it is the one defended by the petitioners in this case. According to this approach, simply filing an application for registration to the U.S Copyright Office is enough to permit suit. In other words, within the meaning of this approach, you are allowed to seek relief for copyright infringement only when you’ve applied for registration, nothing else is required. This approach is also the one taken by the Fifth and Ninth Circuits.

The registration or certification approach, on the other hand, is more of a strict interpretation of the statute. In order for you to file a copyright infringement lawsuit, you need to file an application for registration to the U.S Copyright Office but on top of that, the Register of Copyrights needs to accept and deliver a Certificate of Registration, which is the only document that will allow you to sue for copyright infringement. This is the approach defended by the respondents as well as by the Eleventh and Tenth Circuits.

« No civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title ».

A literal analysis of the statute, §411 indeed confirms the registration approach because it clearly states that the prerequisite to litigation is the registration procedure, which involves both the copyright holder as well as the Copyright Office. That’s the « make registration » language. According to the respondents, « make registration » means that both the copyright holder and the Copyright Office have a role to play. An application for registration filed by the copyright holder is therefore not enough to « make registration » if the Register of Copyrights didn’t participate by giving the Certificate of Registration back.

With that being said, the question is which approach (the certification or application) is more aligned with the purposes of copyright and to answer that question, it is only fair to look at the Brief of Amicus Curiae filed by the American Bar Association (ABA), especially when we know that the IPL section of the ABA took part in the Brief and is very much trustworthy in a field such as copyright.

We think that the application approach is more aligned with the purposes of copyright because « a copyright exists at the moment an original work is “fixed” in a “tangible medium of expression » and also because even if the Copyright Office refuses to deliver a certificate of registration, it won’t have any effect on the district court that will analyze the question de novo. In other words, a refusal won’t be binding on the lower courts. Knowing all that, it will be of no necessity to make use of the registration approach.

In Europe, as is known, copyright formalities do not exist, although some formalities, such as the deposit of a few copies (for ex. books at the national library) do exist outside copyright law. But the copyright approach to formalities is worth to compare with trademark law. Why don’t we have in Europe an obligation to register the copyrighted work with an administration, while registration (with the EUIPO or the Benelux IP Office for instance) is required for trademarks? Is there a justification for this difference between copyright and trademark law?

For copyright, there is no need to register the copyrighted work simply because the protection exists per se. Indeed, all you have to prove with copyright is the originality of your work, so as soon as someone uses your work without your authorization, you can go before a judge and claim that the work belongs to you by proving a certain amount of things.

With trademark, it’s quite different. Trademarks are all about the origin. They must be distinctive, not descriptive and it must not raise confusion in people’s minds.

Is there a justification for this difference between copyright and trademark law?
Copyright is all about the underlying work that is original in itself and therefore triggers and justifies a protection. It is the fruit of the author’s intellectual effort.

A trademark is about origin rather than originality, it’s a sign (such as a word or symbol) that is used to distinguish the goods or services of a manufacturer or seller from that of another. It’s about more than the underlying goods or services. You might have a similar or identical product, but with an immediately recognizable trademark that is the end result of a long period of visibility and usage with the general public, In all those cases, except for usage, it makes much more sense that this trademark is registered and then invested in to build a trademark that allows for this origin function.

The international framework, in particular Article 5(2) of the Berne Convention (BC), provides that “the enjoyment and the exercise of these rights (the rights within the copyright bundle) shall not be subject to any formality“. Is the U.S. copyright system and its rule on registration compatible with Article 5(2)BC?

Article 5(2) of the Berne Convention prohibits formalities concerning copyright, which means that if you get a copyright in Belgium for example, you’ll automatically be recognized this right in any other country part of the Berne Convention, including the USA. Now one question remains: why would the US impose a registration formality in order to file a copyright infringement lawsuit? Isn’t it precisely contrary to article 5(2) of the Berne Convention? Well, a distinction is to be drawn here between the enjoyment and the exercice of copyright which is subject to no formality, and the possibility to file an action which requires a complementary registration formality in US law. It is clear to say that this registration formality is a bit of an obstacle to copyright enforcement and it goes against the « no-formality » purpose of the Berne Convention.

According to the Brief Of Amicus Curiae of the International Trademark Association, the registration interpretation is contrary to Berne. When acceding to Berne, Congress had the intention to align to Berne by reducing formalities concerning copyright so to answer the question asked above, the U.S copyright system and its rule on registration is not, per se, compatible with article 5(2) of the BC because it doesn’t fully align with the no-formality rules that the BC imposes on its signatories but if the Supreme Court decides to rule in favor of the petitioners, then maybe this would be a chance for the US copyright system to be more compatible with the requirements of the BC.

Under U.S. copyright law, are foreigners also subject to the rule contained in subsection 411(a)? If Belgium were to opt for a registration system (in case this would be compatible with Article 5(2) BC), would there be a possibility to impose such registration for Belgian authors and not for foreigners?

No, when the US became part of the Berne Convention in 1988, it amended subsection 411(a) of the Copyright Act that now states that « no civil action for infringement of the copyright in any United States work shall be instituted (…) » ; this is a clear statement of territoriality: foreigners who want to file a copyright infringement lawsuit in the US do not have to register their copyrights like it’s the case for US citizens. They can simply rely on the laws applicable in their countries. In fact, Berne allows its signatories to « impose stricter requirements on authors within their own nation », which leads to a controversial consequence: authors of foreign works who want to file a lawsuit in the US will be able to do it more rapidly and for a less consequent price than American authors precisely because they’re not subject to a registration formality.

Thus, concerning Belgium, the question whether such registration formality would be contrary to article 5(2) of the Berne Convention or not, there is no precise answer as of now because it depends on how rigid and strict you are with the interpretation of the Berne Convention. If such registration formality were to be accepted, it will probably only be applicable to Belgian authors like in the US because of the Berne Convention: no-formality is the rule, formality is the exception so there would be no reason to impose such formality to foreigners (whose countries are part of the Berne Convention of course).

In Europe, what is the rule concerning trademark proceedings; can a civil action for trademark infringement be submitted immediately after the filing of a trademark application, and thus before the registration of the trademark? Did the rule change under Benelux law over the last decades?

In terms of trademarks, there are two main instruments that were established at EU level: the 2009 EU Trade Mark Regulation on the EUTM and the 2008 EU Trade Mark Directive approximating the laws on national trade mark registries. National member states, besides that, also keep their national registrations. For example, in the Benelux governed by the Benelux Convention on Intellectual Property of February 25 2005.

What is good with the EUTMR is that it’s easy to register and it’s harmonized throughout the whole EU, it has the same effect throughout the whole EU. There is one application at one office which is the EUIPO and the application is done in one language for one fee. This made things considerably easier in terms of trademark.

A civil action for trademark infringement should be distinguished from a possible opposition or nullity proceedings. When you file a trademark application, the EUIPO will analyse it in terms of its absolute grounds: concretely, it will check if the trademark is distinctive and not descriptive. In case the EUIPO doesn’t raise any objection, it will publish the trademark in 23 EU official languages. The application for the trademark will thus be made public, but it won’t be registered just yet. Because between the examination period and the registration period, there is the opposition period which allows third parties to object to the registration. After the trademark is registered, opposition is no longer possible but nullity proceedings can be initiated.

What is the difference between patent law and copyright law with regard to the starting point of the protection (and thus the possibility to initiate an infringement action)?

The main difference between patent law and copyright law is that with copyright, there is no formality (Berne Convention), a copyright exists and you are immediately protected as long as an original work is « fixed » in a « tangible medium of expression », regardless of any particular formality but with patent law, it’s different. As a reminder, patent law is aimed at protecting inventions and technical discoveries that are novel. The starting point of the protection is not at all the invention of a molecule for example. In the US, the starting point of the protection for patent begins when the PTO (the Patent and Trademark Office) grants the patent. On the contrary, the Copyright Office doesn’t grant copyright, it can of course as we’ve already seen refuse to grant the registration of the copyright but this doesn’t bind the lower courts that can decide otherwise. Such possibility is not present in the case of patent that must be granted by the PTO that is going to decide on the granting of such patent based on elements like novelty, obviousness and subject-matter of the patent. To sum things up, it is a lot more difficult to fulfill the requirements to obtain a patent than a copyright and the starting point of the protection is normally automatic in the case of copyright (or at least that’s what the BC is advancing even though we saw that the US system of copyright still organizes a few formalities) but is subject to strict requirements for patent that must be granted by the PTO. In Europe, it’s the EPO that grants patents to patentees.

1. The application approach is more aligned with the purpose of copyright because the owner has protection as soon as he finishes his registration process and pays the fees. Suspending the copyright while waiting for the administrative act deprives the author of his right for a certain amount of time in which he can be copied. The role of registration is to protect the copyright owner, when he is protected in the U.S. he’s also protected in Europe. In the U.S. you will have compensatory damages and statutory damages that can be really high. And it’s a lot easier to prove that someone copied your work in a criminal or civil case.

2. Because trademarks are what is going to help us identify the product (for example a certain logo or name of the brand) and because trademarks are valid all over Europe or at least in Benelux countries. The reason why we don’t have to register copyright is because the idea is that you can get protection without having to fulfill any formalities (to protect the creator). Also, copyright overcomes territorial limits : if you are protected under the Berne convention in Belgium, your copyright is protected in all countries that signed the Berne Convention.

3. The Usa became part of the Berne Convention much later (1989), but they pushed for the adoption of the Universal Copyright Convention so they could benefit from the national treatment rule without deleting their formalities.

4. No, when the U.S. became port of the Berne Convention they amended the section 411 (a) so that foreigners wouldn’t need to register in order to initiate a copyright infringement lawsuit in the U.S.
No because of the national treatment rule.

5. Yes, a civil action can immediately be submitted because there are grounds for refusal of registration like for example the similarity with another registered trade mark.

6. Patent is a right that blocks more competitors because it prohibits them to sell a product you have a patent on. You are obliged to register a patent. Copyright is much more flexible : you don’t have to register it and you can make reasonable use of it for example for an academic course.

Is it possible in the U.S. to seek relief for copyright infringement immediately after having applied for registration? A matter of principle or just “a tempest in a tea pot”?
1. It seems to me that the application approach is most aligned with the purpose of copyright, the promotion of the progress of useful arts and science by protecting the exclusive right of authors and inventors to benefit from their works of authorship. It thus creates mechanisms to control ownership and distribution of expressive works. Delaying civil actions on the matter due to a lack of certification when an application has been introduced equates to the negation of the purpose of the law, which aims to protect authors, since it allows for the free distribution of work to continue for a longer period of time.
Moreover, it seems abundantly clear to me that the application approach is the one established by the provision of the Copyright Act. Most notably the stated exception « …where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute a civil action for infringement » makes it clear that the official registration isn’t the condition to a civil action. Finally, whilst it is undeniable that, were the registration to be ultimately denied, a civil action would result in a waste of time and money, since article 502 of said Act doesn’t constitute an obligation for the judge to grant a temporary injunction preventing or restraining infringement, effective registration doesn’t really matter. Indeed, as stated by the Copyright Office in its first circular, « copyright exists automatically in an original work of authorship once it is fixed in a tangible medium, but a copyright owner can take steps to enhance the protections of copyright, the most important of which is registering the work.
Although registering a work is not mandatory, for works of U.S. origin, registration (or refusal) is necessary to enforce the exclusive rights of copyright through litigation », whilst the enforcement requires a registration, denying the introduction of a civil action based on the lack of registration when an application has been introduced would just delay the effectivity of the law and thwart its intended aims

2. In Europe, as is known, copyright formalities do not exist, although some formalities, such as the deposit of a few copies (for ex. books at the national library) do exist outside copyright law. But the copyright approach to formalities is worth to compare with trademark law. Why don’t we have in Europe an obligation to register the copyrighted work with an administration, while registration (with the EUIPO or the Benelux IP Office for instance) is required for trademarks? Is there a justification for this difference between copyright and trademark law?

Trade mark protection is territorial by nature, i.e. the geographic scope of protection for trade marks is limited and depends on the place of registration. Hence, it is advised that you consider applying for protection for your brand in all territories of your commercial interest. If you wish to register a trade mark which would be valid in the whole EU, you can apply for a European Union Trade Mark (EUTM). For doing so, you should file an application to the European Union Intellectual Property Office (EUIPO). As regards a EUTM applications, however, registration criteria will have to be assessed on a Community-wide scale and have be met at the same time in all 28 EU Member States. This might be problematic for many brand owners. EU trade mark system is unitary in character. Thus, an objection against an EU trade mark application in any member state can defeat the entire application, an EU trade mark registration is enforceable in all member states.It is valid for a period of 10 years and may be renewed indefinitely.

Copyright protects literary, artistic and scientific works. Related rights protect performances, sound recordings (phonograms), audiovisual recordings, broadcasts, typesetting and pagination format, as well as previously unpublished works. The sui generis right of the maker of a database is also considered by a part of the literature as a related right. The list of subject matter protected by copyright is open.
No formalities apply, that is, publication, fixation or registration, for the acquisition or exercise of copyright. The principle of protection without formalities is valid for all kinds of works, including photographs. Economic and moral rights are vested in the author of a work without resort to any formality. Copyright arises with the creation of the work. According to Greek law, a copy of a work is deposited with the National Library, the Parliament Library and Public Libraries, but this is a purely administrative measure that aims to preserve cultural heritage.

3. The US copyright system is based on three formalities, including : making a deposit to the
government in order to be protected by copyright, and registering with the copyright
office. So, in principle, it is not compatible with the article 5(2) of the BC. Because of the cinematographic industry in US, they adopted the UCC, to so that the US could keep its formalities while benefiting from the copyright infringement through national treatment.

4. -The condition of 411(a) is a preregistration or registration, but a foreigner hadn’t to register to be protected, because of the UCC.
– The art 18 TFEU lays down the general principle of non-discrimination on grounds of nationality, mean that the right of an author to claim in a member state the copyright protection afforded by the law of that state may not be subject to a distinction based on the country of origin of the work.

5. The new directive 2015/3436 introduces a system for the award of (CTM) EUTM by the Office for Harmonization in the Internal Market (= OHIM), now called EUIPO (= EU Intellectual Property Office). The EUTM is registered and possibly transferred as well for the whole territory of the EU. Requiring no more than a single application, EUTM has a unitary character in the sense that it produces the same effects throughout the EU.
But this directive is not transposed yet ; should be so in 2023.
For now, a civil action for TM infringement before the registration of this TM wouldn’t be successfull, because there are many steps between the filing and the registration :
* Filing (through national office or at EUIPO)
* Formalities examination
* Absolute grounds examination to refuse the TM
* Search of prior possible right
* Publication of application (before the EU IP office)
* Once the TM is published, opposition on relative grounds are possible by third parties (within 3 months of publication)
* If there is no opposition or if the decision on the opposition allows the registration, the request for registration is accepted and the TM is registered
* You also can appeal the opposition if the decision doesn’t suit you. And there can be an appeal before the general court then an appeal before the ECJ (in some rare cases).

6. Mainly, with copyright, there is no formality. As soon as it exists, you are protected (an original work must be “fixed in a tangible medium of expression”). The beginning of the protection is almost evry time automatic.. That is not the case with patent law. In US, patent must be granted by the PTO (Patent and Trademark Office), this decision being based on the novelty, obviousness and and subject-matter sides of the creation. It is thus much more simpler to obtain a copyright than a patent. In Europe, same thing but it’s the EPO that grants the patents.

IPdGIT: Is it possible in the U.S. to seek relief for copyright infringement immediately after having applied for registration? A matter of principle or just “a tempest in a tea pot”?

1. What is the approach (the ‘certification’ or the ‘application ‘approach) that is more aligned with the purposes of copyright? The response of course requires to identify those purposes (so need to dig into a literal analysis of the above mentioned provision of the Copyright Act and of the “make registration” language). The response also requires to think about the role of registration – and the reasons for making the right to sue for copyright infringement potentially contingent on effective registration.
The approach that seems to be more aligned with the purposes of copyright is the ‘certification’ approach.
Indeed, in the United States, there is a formality before that an owner can bring an action to defend his copyright. You must register your right at the Copyright Office. The process consists in introducing an application and waiting for the Office to allocate you a certification. This procedure involves the payment of a fee. This is something we don’t have in Europe and if the United States decided to implement this formality, it is for several reasons:
– Main purpose: it is to determine whether or not the right that the owner pretends to have is a copyright. The Copyright Office has, in fact, the mission to review the applications in order to make sure these are copyrightable subject matters.
– Another purpose: during this examination phase, the Copyright Office is in correspondence with the applicant. Therefore, the applicant can remedy the situation by taking into consideration all the remarks that the Office said to him, or otherwise abandon his claim.
– Finally, the certification issued by the Office gives an effective date to the copyright.
The process of registration provides also incentives for the owner such as allowing him to bring an action (caveat! Registration is not a condition for the validity of the right but rather a prerequisite to jurisdictional actions), or as authorizing « awards of statutory damages, costs, and attorney’s fees to prevailing copyright owners ».
« The question presented (…) is whether the owner’s action of delivering the “required application, deposit, and fee to the Copyright Office” constitutes “registration of the copyright claim” within the meaning of Section 411(a) » (‘application’ approach), or if « registration » involves waiting for the Office to issue the certificate.
In the case presented (Fourth Estate Public Benefit Corporation, Petitioner
v. Wall-Street.com, LLC, et al.), the petitioner is asking the Court to adopt the ‘application’ approach which consists in saying that Section 411(a) requires only the introduction of an application (no need to wait for the answer of the Copyright Office). But, in an amicus curiae brief, the American Bar Association defended the other theory. They say that the word “registration” clearly refers to the process of registering because of historical reasons at first (a long time ago, people used to go before the clerk and deposit their application there where the clerk would then write it in a book) but also for obvious literal reasons too (‘to register’ refers to the action – by the Office – of registering in their archives and not, as the petitioner said, to the action – by the owner – to apply).
Furthermore, we can see that the ‘certification’ approach is more aligned with the purposes of registration. Indeed, if the main point of registering is to be able to certify afterwards that you have a copyright, you need to have a certificate. It is not enough to only apply. The Copyright Office has still the possibility of denying the copyright.

2. In Europe, as is known, copyright formalities do not exist, although some formalities, such as the deposit of a few copies (for ex. books at the national library) do exist outside copyright law. But the copyright approach to formalities is worth to compare with trademark law. Why don’t we have in Europe an obligation to register the copyrighted work with an administration, while registration (with the EUIPO or the Benelux IP Office for instance) is required for trademarks? Is there a justification for this difference between copyright and trademark law?
According to the article 5.2 BC ‘the enjoyment and the exercise of [copyright] shall not be subject to any formality’. Indeed, the main requirement for copyright protection is originality. This requirement meant that the work had to come only from the authors’ creativity. For a long time, the artistic work never had a definition in the Copyright directive. It is because of this lack of definition that the copyright formalities were very weak. However, the CJEU allowed the protection of copyright under the creativity of the author : “It is only through the choice, sequence and combination of those words that the author may express his creativity in an original manner and achieve a result which is an intellectual creation”.
On the contrary, the trademark can be identified only with the law to guarantee to the public that only those products originating from the proprietor of the trade mark should be sold under such trade mark. If the law didn’t establish regulations on uniqueness, the purpose of the artist’s idea would confuse the people. The trade mark is guaranteed by multiple treaties : The Paris Convention of 1883/1967, the Madrid Agreement of 1891, the Nice Agreement of June 1957, … One after another, these treaties established some formalities to fill in in order to have a codification of the different trademark (Ex: Common classification of goods and services for the purposes of the registration of mark). In Europe, a certain harmonization was created in order to modernize and improve the existing provisions of the directive and achieve greater approximation of national trade mark laws and procedures with the aim of making them more consistent with the Community trade mark system.
We can understand that there has been a clear reason why the trademark has had a formality purpose why the copyright hasn’t. In order to insure the affluent creation of new authors’ and artists’ ideas, the different European states didn’t obligate them to register their creation in a formal book or so. This way, the CJEU preferred controlling the copyrights’ issues by the determination of the creativity and not by formal obligations. Therefore, the authors won’t feel restricted to create new items, knowing that the creativity is established defacto and not in formalities.
3. The international framework, in particular Article 5(2) of the Berne Convention (BC), provides that “the enjoyment and the exercise of these rights (the rights within the copyright bundle) shall not be subject to any formality“. Is the U.S. copyright system and its rule on registration compatible with Article 5(2)BC?
Art. 5(2) of Berne Convention: “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”.
In accordance with this article it’s clearly not admissible, there is not any formality accepted.

4. Under U.S. copyright law, are foreigners also subject to the rule contained in subsection 411(a)? If Belgiumn were to opt for a registration system (in case this would be compatible with Article 5(2) BC), would there be a possibility to impose such registration for Belgian authors and not for foreigners?
A) Elsevier B.V. UnitedHealth Group, Inc., 09 Civ. 2124 (WHP), US Distr. SDNY, 2010, a Southern District Court in New York recalls that, although the formalities are not a pre-requisite of the lawsuit for works of foreign origin in the United States, the absence of their fulfillment will have consequences on the allowances granted. Indeed in this case, the defendant is a company that publishes online many foreign texts, protected in their country of origin. The obligations are not identical to those imposed on national authors. Indeed, unlike the latter, since the ratification of the Berne Convention foreign authors do not need to register their copyright in the Copyright Office so that the courts are competent in case of violation. However, as for national authors, if the work has not been registered, certain allowances can not be granted.
Foreign authors can sue for copyright infringement without their work being registered in the United States. The absence of registration will not pose a problem in terms of jurisdiction, as the ratification of the Berne Convention prompted Congress to exclude foreign authors from Article §411 of the Copyright Act. However, no changes have been made to Article §412. Thus, as for national authors, the registration or absence of it will have an impact on the allowances that may be granted. If the work is not registered, neither statutory compensation nor judicial costs can be granted.

B) In the Elsevier case, the Court states that since the Convention does not have direct effect, a transposition law is necessary. As the Congress has not amended this article while other amendments have been made for the purpose of transposition, it is therefore in conformity with the Constitution. Countries that follow the tradition of copyright, such as Belgium have national laws very close to the letter of the convention and we therefore amended this provision. A step back seems very difficult unless you leave the convention.

5. In Europe, what is the rule concerning trademark proceedings; can a civil action for trademark infringement be submitted immediately after the filing of a trademark application, and thus before the registration of the trademark? Did the rule change under Benelux law over the last decades?

No, it cannot, since the article 90, paragraph 1 of the EU Regulation 2017/1001 of the 14th of June 2017 on the European Union trade mark clearly states that concerning trade mark infringements, “only the proprietor of an EU certification mark, or any person specifically authorised by him to that effect, shall be entitled to bring an action for infringement”. By the use of the word “proprietor”, the article implicitly obliges the person who wants to bring an action for infringement of his trade mark to be in possession of an EU certification mark before he acts. When the person files for a trade mark, it is not certain that his demand of registration will be accepted and thus he cannot be “proprietor” yet.
Although the same rules roughly apply to the Benelux law, there is a nuance brought in the Benelux Convention on Intellectual Property concerning trademarks and designs as lastly amended by the Protocol of 22.07.2010. The article 2.19, paragraph 1 concerning the obligation to register clearly states that “with the exception of the holder of a trademark which is well known within the meaning of Article 6bis of the Paris Convention, and regardless of the nature of the action brought, no one may claim in court protection for a sign deemed to be a trademark as defined in Article 2.1 (1) and (2), unless that claimant can provide evidence of registration of the trademark which it has filed”. In short, the same rules apply, except when a person is holder of a trademark which is well known (in respect with the meaning of a “Well-Known Marks” contained in the article 6bis of the Paris Convention for the Protection of Industrial Property of March 20, 1883).

6. What is the difference between patent law and copyright law with regard to the starting point of the protection (and thus the possibility to initiate an infringement action)?

Patent law :

« The law establishes the United States Patent and Trademark Office to administer the law relating to the granting of patents and contains various other provisions relating to patents. Application for patent has to be made. It can be a non-provisional or provisional application for a patent. An examination of the applications and proceedings in the United States Patent and Trademark Office occurred. This process is realized by the examiner who renders a decision saying if he’s favorable to the ranting of the patent. The publication of patent applications is required by the American Inventors Protection Act of 1999 for most patent applications filed on or after November 29, 2000.
As a result of publication, an applicant may assert provisional rights. These rights provide a patentee with the opportunity to obtain a reasonable royalty from a third party that infringes a published application claim provided actual notice is given to the third party by applicant, and patent issues from the application with a substantially identical claim. Thus, damages for pre-patent grant infringement by another are now available ».
So in conclusion it is the publication of the application for patents that is essential for the protection of your intellectual property.

Copyright law :
In the US : see the case pending before SCOTUS ; We don’t know yet whether « registration of [a] copyright claim complete under 17 U.S.C. § 411(a) when the copyright holder delivers the required application, fees, and materials to the copyright office, or only once the copyright office has acted on that application »?

Although your work is technically copyrighted at the time of creation, registering it with the federal government grants you federal protection to your intellectual property. Otherwise, you cannot bring a lawsuit against another party for copyright infringement.

In Europe you don’ need any registration for copyright law.

COGET Matthieu
PELTZER Arthur

Homework 3 IPL

1) The purpose of copyright law is to promote the progress of useful arts and science by protecting the exclusive right of authors and inventors to benefit from their works of authorship. Therefore the application approach is more aligned with the purpose of copyright, as it includes the exclusive right of the author, by giving him the right to file the copyright application, before making the registration fee.
The purpose of copyright registration is to place on record a verifiable account of the date and content of the work in question, so that in the event of a legal claim, or case of infringement or plagiarism, the copyright owner can produce a copy of the work from an official government source.
The role of registration is better exemplified through its effective aspect, through which the risk of copy right infringement is considerably lowered.

2) The very concept of trademark places legal registration at its epicentre. Thus, the formalities, such as the deposit of a few copies that come alongside registration are, by definition, compulsory. However, the purpose of copyright registration is to convey a possibility for the author is to place on record a verifiable account of the date and content of the work in question, so that in the event of a legal claim, the copyright owner can produce a copy of the work from an official government source The optional facet of copyright registration is here brought forward, justifying the differential treatment.

3) No, subsection 411(a) of the US Copyright Act explicitly says that preregistration or registration of the copyright claim must be made before a civil action for infringement of the copyright can be instituted. This is contrary to Article 5 of the Berne Convention, which says that there shouldn’t be any formalities.

4) A distinction must be made between the author rights relatives to all the countries which have signed the Bern Convention and the others. In the case of a piece of work original from a country protected by the Bern Convention, subsection 411 (a) of the US Copyright Act does not apply. If the registration has been made in a country other than one protected by the Bern Convention Subsection 411 (a) will apply.
If it was the case in Belgium, and as art. 5 (2) of the Bern Convention is more dedicated to substantial forms, Belgium couldn’t apply its registration system to any other country within the Bern Convention but could apply to the same countries ad does subsection 411 (a).

5) No, as a matter of facts, a civil action for trademark infringement cannot be submitted immediately after the filing of a trademark application as the trademark proceeding is narrowly linked with formal conditions. Yes Benelux legislation has been changed since 1st of October 2013.

6) Concerning the patents, the point of depart begins at the moment where “Bulletin Officiel de la Propriété Industrielle” publishes the demand. In opposition for author’s rights, the protection begins at the moment where a

Is it possible in the U.S. to seek relief for copyright infringement immediately after having applied for registration? A matter of principle or just “a tempest in a tea pot”?

1) Under the subsection 411(a) of the US Copyright Act, there is a need for a preregistration or registration before proceeding to civil action for copyright infringement. It’s possible to deduct from this article the purposes of copyright. Copyright, literally the right to copy, was instated in order to prevent people from stealing other people’s work, taking credit for their work of art, music, architecture, graphical, sculptural… The owner of copyright licence has the right to reproduce the work and distribute it in any ways he wants.
Copyright has several purposes :
Copyright is a mean of control of your creative and expressive work. When you create something you have the ownership and you can control it. However, whenever you make a copy and give it to someone it can start to spread and the control you once had disappears slowly. It becomes available to everyone else. Copyright therefore is a way of controlling ownership and the distribution of expressive and creative work.
If copyright didn’t exist everyone would be able to copy everyone’s work without consideration to its author. Copyright hereby allows the creators to decide whether or not the distribute their work and in which ways they choose to do so. Copyright therefore is a way of controlling ownership and the distribution of expressive and creative work, so authors can receive rightful payment for their works.
Because creators get paid to copies of their work they are willing to produce more. Furthermore, many more creators are willing to produce original content in order to get paid for copies. This process benefits the whole society because it allows a broad creation process in many subjects such as art, science, culture… Copyright therefore is a way of controlling ownership and the distribution of expressive and creative work, because this will result in the creation of many more expressive and creative works, which benefits all society.
Copyright also has a function of rewarding personal and original work. It’s rewarding for creators to be acknowledged for their own original work.

For all these considerations, we think that the approach which best correspond to the purposes of copyright is the ‘application approach’. Copyright should be effective as soon as the creator has made his intent to ‘copyright’ its work public.
Registration is not needed in order for copyright to exist. There is only a condition of originality that is required in order for copyright to apply. If an effective registration was to be put into place it should be contingent to copyright infringement because the registration protects copyright itself.

2) The copyright informs others that you intend to control the production, distribution, display or performance of your work. No formalities are needed for the acquisition or exercise of copyright. For example, no publication, fixation or registration are necessary. Indeed, copyright is granted automatically from the moment a work is created then registration is not required in order to protect your work. Copyright exists as soon as an idea has been written down or recorded in some other way.
For trademarks, it is different. Trademarks protect the name of your product by preventing other business from selling a product under the same name. registration is here necessary because it is a proof of ownership. You cannot own an unregistered trademark or sell it. You need a registered trademark to be able to sue someone for improper use of trademark as a criminal offense. It is also easier to pursue someone because with a registered trademark you don’t have to prove your business reputation or that there has been misrepresentation or deception.

3) On the one hand, according to the article 5(2) of the Berne Convention (BC), “the enjoyment and the exercise of these rights (the rights within the copyright bundle) shall not be subject to any formality”. On the other hand, the subsection 411(a) of the U.S. Copyright Act claims that “no civil action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made accordance with this title”. These two legal dispositions seems to be opposite. Where the US Copyright Act requires rules of registration in order to materializes the copyright infringement, the Berne Convention claims that the recognition of this infringement should not by subject to any formality. The main difference is that in the US, copyright effect is suspended to an administrative act which means that without a certificate of registration, the copyright is not recognize. However, this is not the case under the Berne Convention where no formalities are required.

4) The US government has asserted that a foreigner’s activities outside the US can infringe US copyright law, so long the activity has some nexus with the United States. As a result, US copyright law is being used with increasing frequency against online activities that occur far beyond American borders. Protection by copyright law does not require registration. If registration applies, copyright will come into existence by and as of the mere creation of the work, as long as that the work is copyrightable and that it meets the originality requirement.
Article 5(2) of the Berne Convention: “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”. This means that this would apply to foreigners.

5) In many countries, a trademark which isn’t registered cannot be “infringed” as such, so the trademark owner cannot bring infringement proceedings. In Europe, trademarks can be registered at national level as a national trademark or at EU-level as a European Union trade mark. Although protection is granted by registration, it is granted with retroactivity to the date of filing, so the applicant may start to use the mark from the time of filing, but registration is necessary to bring an action.
The rule didn’t change under Benelux law. According to the Benelux Office for intellectual property, once you have officially registered your trademark, it is legally protected. The registration of a trademark is subject to statutory rules contained in the Benelux Convention on Intellectual Property trademarks and designs : according to article 2.2 of the Convention, « … the exclusive right in a trademark shall be acquired by registration of the trademark that has been filed in Benelux territory (Benelux filing) or results from registration with the International Bureau (international filing) ». According to article 3.17, « The exclusive right shall allow the holder to claim compensation for the acts listed in Article 3.16 only if those acts took place after the publication referred to in Article 3.11, adequately disclosing the features of the design », so compensation is only possible after registration.

6) Without a patent, anyone can make and sell your invention without your permission and without compensating you. You can also use a patent pending. Basically, this means that you need to get a patent, or at least a patent pending, in order to be protected. If you do not have any, you cannot sue someone for infringement. Whereas, under copyright, you do not need a copyright notice to gain protection. It means that even though you did not include a copy right notice, you can still sue someone for using your work.

1. The application approach is the most in lign with the purposes of copyright, because copyright is a right in itself, and its existence should not be subjected to a piece of paper . The role of registration is to allow you to prove you right in a legal procedure. Furthemore, to get a criminal action, a willfull intention must be proved, and such an intention is sufficiently proved by a simple application.

2. The reason tradmark has to be registred and not copyright is the fact that trademark has to be conform to the public order or accepted principles of morality. The registration process can then act as a sort of control of the trademarks conformity or not.

3. The simple fact of needing a registration in the US is not compatible with Article 5(2) of the Berne Convention (BC). Indeed, it provides that “the enjoyment and the exercise of these rights (the rights within the copyright bundle) shall not be subject to any formality”, yet registration IS a formality. Nevertheless, it is somewhat compatible seen as if you register you copyright in the US you will be protected in Europe (but not vice versa seen as the registration criteria would not be filled).

4. Foreigners are also subject to this rule because it is not necessary for the applicant of a US copyright application to be a US citizen or a US resident. In fact, any work protected by US copyright law may be registered. So this includes works of foreign origin.

Because of the two main rules of the Berne Convention, Belgium couldn’t impose such registration only for Belgians. The first principle is the national treatment, it essentially means treating foreigners and locals equally. The second principle is the prohibition of formalities. That means that you are protected by copyright without doing anything. In fact, we saw that there are no formalities (art 5.2 of the Berne Convention). The UCC imposes the minimum formalities in order to be protected abroad.

5. Yes. Once the trademark is published, opposition on relative grounds are possible by third parties (within 3 months of publication). If there is no opposition or if the decision on the opposition allows the registration, the request for registration is accepted and the trademark is registered. The EUTM has been transposed in Benelux.

6. Patent stays national and isn’t protected automatically by European law whereas copyright is thanks to the Berne Convention. Whereas copyright is protected from copying in general, patent is only protected from commercial uses. Seen as copyright last 70 years, and patent only lasts 20 years, the protection you get from copyright is longer lasting. Furthermore, copyright protects the true owner of the work, and not just the first person to file for the right like in the case of patents. Nevertheless, the scope of protection is a lot wider for patent than it is for copyright.

1. What is the approach (the ‘certification’ or the ‘application ‘approach) that is more aligned with the purposes of copyright? The response of course requires to identify those purposes (so need to dig into a literal analysis of the above mentioned provision of the Copyright Act and of the “make registration” language). The response also requires to think about the role of registration – and the reasons for making the right to sue for copyright infringement potentially contingent on effective registration.
In the US, copyright is valid without registration but registration is required before an infringement suit may be filed.
It makes sense to require registration before filing an infringement suit because with registration the copyright owner has an official document supporting his claim.
However, the application approach is more aligned with the purpose of copyright. Copyright serves a utilitarian function: because the creation is rewarded, it will encourage people to create more and more. Formalities, such as registration, are an administrative obstacle that prevent people from being able to protect their work and consequently, registration seems counterproductive to the purpose of copyright.

2. In Europe, as we know, copyright formalities do not exist, although some formalities, such as the deposit of a few copies (for ex. books at the national library) do exist outside copyright law. But the copyright approach to formalities is worth to compare with trademark law. Why don’t we have in Europe an obligation to register the copyrighted work with an administration, while registration (with the EUIPO or the Benelux IP Office for instance) is required for trademarks? Is there a justification for this difference between copyright and trademark law?
Copyrights do not require any registration as they rely on the originality of the product, and the protection is thus automatic from the moment of the creation of the work. It is a way to protect any creation at the moment it is made, and to avoid stealing or fraudulent behavior from others because of the ignorance of the creator.
On the contrary, trademarks need a registration because they rely on the distinctiveness of that product comparing to the other. It is a mean to distinguish the companies, that know what they are doing. In the trade-mark concept, we can also view a protective dimension towards the consumer : to ensure that he is buying from the undertaking he wanted and protect him from fraudulent producers (that would try to benefit from another manufacturer reputation).

3. The international framework, in particular Article 5(2) of the Berne Convention (BC), provides that “the enjoyment and the exercise of these rights (the rights within the copyright bundle) shall not be subject to any formality“. Is the U.S. copyright system and its rule on registration compatible with Article 5(2)BC?
Yes, it is because in the US, the formality is not mandatory. However, many people do registrate with the US Copyright office because there are some advantages of doing so : it is an evidence, in case of judicial proceedings, that your work was the original, and demonstrates your willful intention in case of criminal charges. Also, it is useful for some bodies or organization working to protect copyrights.

4. Under U.S. copyright law, are foreigners also subject to the rule contained in subsection 411(a)? If Belgium were to opt for a registration system (in case this would be compatible with Article 5(2) BC), would there be a possibility to impose such registration for Belgian authors and not for foreigners?
First, it depends on domestic legislation. If, nationally, the registration is required to bring a civil action for infringement of the copyright, it is the same in the US. If not, foreigner can institute the action as they would in their home-country, even though they won’t be able to claim damages.
According to the article 5(2) of the Berne Convention, authors are not submitted to other states’ formalities. However, in case they want to bring suits in a foreign state, they will have to follow that state’s protection laws. So yes, Belgian authors would be submitted to different rules than foreigners, but foreigners would have to adapt to the legal remedies (and their conditions) available in the Belgian legal system.

5. In Europe, what is the rule concerning trademark proceedings; can a civil action for trademark infringement be submitted immediately after the filing of a trademark application, and thus before the registration of the trademark? Did the rule change under Benelux law over the last decades?
Ownership of a trademark is acquired through registration; it is not possible to submit a civil action for trademark infringement before the registration of the trade. Without registration, no protection is available unless the unregistered mark is a well-known trademark in the sense of article 6bis of the Paris Convention: the trademark must be well known by the relevant public throughout a substantial part of the Benelux territory.

6. What is the difference between patent law and copyright law with regard to the starting point of the protection (and thus the possibility to initiate an infringement action)?
Patent law protects people from using, selling or copying a technical invention such as a machine, for example whereas copyright law protects ideas and expressions. Because patent law is mostly used in commercial areas in which a big amount of money can be lost if the technical invention is not protected, it is even more important that the registration is fully done before initiating an action.

Intellectual property exercise

What is the approach (the ‘certification’ or the ‘application ‘approach) that is more aligned with the purposes of copyright?
The purposes of copyright law are :
to protect the exclusive rights of inventors and authors (US copyright act of 1976 protects all the work of authorship created after 1976).
If the authors have originality and fixation, they meet the standards of copy right law.

Normally there is no need of registration. Need registration before a copyright infringement action (before a lawsuit) but if it’s denied, the action can continue if the defendant asks to determine the copyright ability of his work before hand. Note that infringement requires copying.

We would say that the approach that would suit the purposes of copyright the most is the application approach. Indeed, as said before, the purposes of copyright is to protect exclusive rights. The procedure must therefore be quite easy for the defendant .. he/she shouldn’t have to wait for a certificate .. Copyright is a right.

2. In Europe, as is known, copyright formalities do not exist, although some formalities, such as the deposit of a few copies (for ex. books at the national library) do exist outside copyright law.  But the copyright approach to formalities is worth to compare with trademark law. Why don’t we have in Europe an obligation to register the copyrighted work with an administration, while registration (with the EUIPO or the Benelux IP Office for instance) is required for trademarks? Is there a justification for this difference between copyright and trademark law?

Trade mark are signs that differentiate the goods of one company to another. Words, logos, distinctive features .. all of that is trademarks. In Europe trademark can be registered in the national level, or in the EU-level. The trademarks protect the name of business products. You need registration.

Copyright on the other hand inform others that you want to control all the steps of your work (production, display, distribution..). Copyright project an original work. copyright is granted automatically. No need for registration.
Copyright does not depend on official procedures since the Berne convention for the protection of Literary and artistic works. The works are protected without any formalities in the countries party of that convention.

What would be the justification for this difference ? We would say that it’s because trademark are always commercial and for professionals, therefore a registration is needed.

3. The international framework, in particular Article 5(2) of the Berne Convention (BC), provides that “the enjoyment and the exercise of these rights (the rights within the copyright bundle) shall not be subject to any formality“. Is the U.S. copyright system and its rule on registration compatible with Article 5(2)BC?

In the US, the enjoyment and the exercice of those exclusive rights are also not subject to any formalities. But in contrary with the EU system, registration has to be made before a lawsuit can be filed. Being able of filing a lawsuit is part of the « enjoyment and exercice of the copyright », in this way we wouldn’t say that the article 5(2) is compatible with the US system.

4. The Berne convention provides that “the enjoyment and the exercise of these rights (the rights within the copyright bundle) shall not be subject to any formality. To comply with the Berne convention, subsection 411(a) of the U.S. Copyright law provides that the prerequisite of being registered before suing for infringement only applies to ‘United States works’. However, this protection of foreign works can be nuanced. First of all, the term ‘United States work’ is defined in Section 101 of the Copyright Act and contains that for a work to be or not a ‘United States work’ does not depend on the national origin of the author or of the work. This is particularly important with regard to online publication : Section 101 provides that a work published simultaneously in the US and in a foreign nation is a ‘United States work’. In Kernal Records v. Mosley, the Southern District Court of Florida held that the publishing of a work on a foreign website constitutes ‘simultaneous global publication’ and is therefore comprised within the definition of Section 101. Moreover, article 17, §412 of the USC clearly states “registration” as necessary to obtain certain remedies for infringement : statutory damages and attorney’s fees.
In Belgium, the creation of the work automatically grants copyright protection to it and allows to sue for infringement. If a registration obligation were imposed only on Belgian authors and not on foreign authors, it would likely be challenged on the grounds of articles 10 and 11 of the Constitution. Moreover, the ECJ has tried to attain a uniform notion of the originality requirement, which shows us that the requirements necessary to invoke copyright are a matter of concern to the Court. Therefore such a difference of treatment between Belgian and foreign authors would likely be challenged at the European level on the grounds of the european principle of non-discrimination.

5. Pursuant to Article 6 of the Council regulation on Community trademarks, EU trademark protection is obtained by registration and not only by filing, meaning that a trademark enjoys full protection only after registration. However, the EU trade mark application entitles the applicant to file oppositions against trade mark applications filed later that may be identical or similar to the applicant’s trade mark for identical or related goods and/or services. Pursuant to Article 2.2 of the Benelux Convention on Intellectual Property, the right in a Benelux trademark is acquired by registration, but the applicant also has a right to file opposition before the actual registration (article 2.14).

6. The starting point of protection of a patent in the US is the moment the patent application is filed, however the right to initiate an infringement action is suspended to the moment the patent is granted. However, an action can be initiated for infringement that occurs during the patent pending period, whereas the inventor has no rights before the patent application. It is different with regard to copyright : the right to seek remedy only exist from the moment of registration of the work, however copyright protection is automatic from the moment a work is created and the author can sue for infringement that has occurred before registration.

1. We believe that the “application approach”is more aligned with the purpose of copyrights.
Indeed, after shedding light on the main purposes of the copyright, the protection of intellectual property of the creator but more specifically protecting him or her from unauthorized copy of his or her work (music, product, film, etc.), it seems to us that the certification approach is more detrimental to copyright claimants that do not already own a copyright registration and can not afford to wait the necessary time to get a registration certificate to issue.
Because in the mean time, we can see a bunch of violations of the m’entonnes copyright.
This situation has the effect to completely destroy on the one hand, the efficiency of the copyright and its purposes itself, but also on the other hand, the right to sue for copyright infringement potentially useless.

2. Copyright protects literary, artistic and scientific works. When it comes to copyright, the principle of protection without formalities (Convention of Berne) is valid for all works.
A trade mark is a sign distinguishing the goods and services of one company from the goods and services of the others. Trade mark is a very important asset for a company as it enables the company to promote its products, to attract customers and thus, to grow. Therefore, it is of utmost importance for a company to protect its trade mark and trade mark registration is indeed one of the most effective means to develop and defend its brand. At European Union level, trade mark registration has been unified in order to simplify the procedures in Member states. Thus, when a company registries its trade mark, the effect is EU-wide.
The fact that the trade mark registration protects a brand at EU level is very important in the case of litigation. As trade marks are valuable assets for a company, litigation is more likely to happen for trade marks than for copyright, and thus formalities are required for trade marks, but not for copyright.

3. Taking into account the fact that the U.S. copyright system requires heavy formalities (register a copyrighted work in an administration) it seems not be compatible with the article 5(2) of the Berne Convention which expressly provides that any formality can be imposed on the enjoyment and the exercise of these rights.

4. The article 411 (a) of the US Copyright act says that if you do not comply with the formalities to do the preregistration or registration of the copyright, you can’t introduce a civil action for infringement of the copyright. But it specifies that it is « in any United States work ». It means that if the work is not created in the US but in a foreign country, the rule will not be applied for them. This article, adopted by the Congress, eliminated the registration for foreigners to conform U.S. law to Article 5 of the Berne Convention.
But if Belgium were to opt for a registration system, which is currently not possible because the Berne Convention prohibits formalities, it would not be possible to impose a registration only for Belgian authors because the Berne Convention and the Universal Copyright Convention apply the national treatment principle : every work that would be protected in Belgium has to be treated as a national work, so the registration formalities would need to be complied with irrespective of the origin of the work.

5. No. In Europe, registration is the only way to acquire a community trademark. We can’t intend a civil action, that is submitted to civil law pursuant to the EU, for trademark infringement immediately after the filling of a trademark application. It’s only after registration that the owner obtain the exclusive right to use it in the course of trade.
However, a protection without use for well-known marks have to be provided by member states.
Under Benelux law, all the rules have just changed per June 1, 2018. It is the registration that give you truly the title of holder of the trademark and that you can enforce your rights as such. But you can have a protection thanks to the mere application for your future registration. Normally, there are even more amendments to be brought to Benelux Trademark Law early 2019.

6. The main difference between copyright and patent is the needed requirements to benefit from it. While copyright is automatic when an author creates something original and lasts for 70 years added to the authors live, it is needed to register an invention to benefit from a patent that will last for 20 years.
Therefore, the starting point of protection for something protected by copyright is the moment when the original work is created while an invention protected by a patent will only be protected from the moment of its registration.

Corentin Burton, Catherine Lipski, Andreea Pletea, Maxime Vanderhaeghe, Céline Vandermeulen, Scott Vilasco

1. I think the european approach is more alligned with the purpose of copyright because it is here to protect the creator. If you have to respect formalities and register it, the risk someone copies it is higher. That means that in the USA, if you haven’t filed for protection yet, you have the right to « no civil action for infringement of the copyright in any United States work ». The reason you have to register it is to officialise the procedure, but if you haven’t had time to do it you will get no protection which is not fair for the creator.

2. Because trademarks are what is going to help us identify the product (for example a certain logo or name of the brand) and because trademarks are valid all over Europe or at least in Benelux countries. The reason why we don’t have to register copyright is because the idea is that you can get protection without having to fulfill any formalities (to protect the creator). Also, copyright overcomes territorial limits : if you are protected under the Berne convention in Belgium, your copyright is protected in all countries that signed the Berne Convention.

3. The Usa just became part of the Berne Convention much later (1989), but they pushed for the adoption of the Universal Copyright Convention so they could benefit from the national treatment rule without deleting their formalities.

4. No because of the national treatment rule.

5. Yes, a civil action can immediately be submitted because there are grounds for refusal of registration like for example the similarity with another registered trade mark.

6. Patent is a right that blocks more competitors because it prohibits them to sell a product you have a patent on. You are obliged to register a patent. Copyright is much more flexible : you don’t have to register it and you can make reasonable use of it for example for an academic course.