The Berne Convention's Flexible Fixation Requirement: A Problematic Provision for User-Generated Content

AbstractThe Berne Convention for the Protection of Literary and Artistic Works sets forth an international standard for copyright protection. However, the fixation provision directs signatories to prescribe works subject to a fixation requirement for copyright protection however they choose. This provision of the Convention and the corresponding legislation that has been generated are of particular relevance to the debate over the protection of user-generated content (UGC). UGC, which has become popular on social networking sites like Facebook and Twitter, raises an important question for the fixation standard. Specifically, it is not clear whether or not UGC is fixed, and therefore the requirements of different jurisdictions may apply unevenly to such content and subject it to different levels of protection. The problems created by this lack of consistent treatment could be solved by implementing a uniform standard in the Convention-namely, by reviving a depositary requirement for authors who seek copyright protection for their works. While this solution poses some administrative hurdles, if properly limited in scope, it would further the purposes of the Convention without substantially complicating the current system of protection.Table of ContentsI. Introduction 686II. The Berne Convention and the Fixation Requirement - or Lack Thereof.. 689A. The National Treatment Standard and Its Impact on Fixation 690B. Defining UGC 691C. Different Approaches to the Fixation Requirement 6911. The US and other nations with a fixation requirement 6932. Nations with no fixation requirement 695III. Fixation's Potential Impact on Web 2.0 and User-Generated Content... 697A. The Desire to Copyright UGC 697B. Is UGC Fixed? 698IV. Need for a Uniform Standard 702A. The Evidentiary Purpose of Fixation 703B. Proposed Standard: A Depositary Requirement 704V. Conclusion 707I. INTRODUCTIONThough the Internet is no longer new, its prevalence in our daily lives has no doubt increased and continues to do so because of new technology such as smart phones and tablets. Many people use the Internet and online or Internet service providers (OSPs or ISPs)1 to "check in" to locations they visit, such as restaurants and movie theaters,2 to post photos of their outings, to share what they are doing or plan to do, and to express their thoughts and feelings. The most popular websites for engaging in these activities are known as social networking sites and include services such as Facebook and Twitter.3 These sites can generally be accessed from anywhere with an Internet connection, are typically free, and allow people from many different countries to interact by commenting on, linking to, or copying postings made by each other.These activities, which are emerging as a key component of social life, have serious implications for international copyright law, yet it has little to say about them. Specifically, the Internet and related technology have raised questions about what it means for a work to be "fixed," that is, in what form a work must exist to gain copyright protection.4 The US and several other countries have established a fixation standard that must be met to obtain copyright protection, while several countries have no such standard at all. …