Copyright Registration: 'Upside-Down' Inequality

Author:Ms María Sol Porro
Profession:Moeller IP Advisors
 
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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...

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