Synda SOMAI—Copyright Registration LLM in Common Law

République tunisienne
Ministère de l’Enseignement Supérieur et de la ‫الجمهــورّية الّتونســّية‬
Recherche Scientifique ‫وزارة الّتعليم العالي والبحث العلمي‬
Université de Carthage
‫جامعـة قـرطاج‬
Faculté des sciences juridiques,
politiques et sociales,Tunis ‫كّلّي ة العلوم القانونّي ة والّس ياسّي ة واالجتماعّي ة بتونس‬

Seminar dissertation in Intellectual Property Law

Professor: Mme. Ines TRIKI

Copyright Registration

Presented by Synda SOMAI

Synda SOMAI—Copyright Registration LLM in Common Law

I ntellectual property is the subject matter of the laws that give rise to
proprietary interests in creations of the mind. Among the various categories
of intellectual property rights, copyright addresses types of creations ranging
from traditional works of art, including literature, music and visual art, to more
modern forms of artistic expression such as sound recordings, motion pictures
and even computer software and smartphone applications.

The term “copyright” is widely used in Common Law countries whereas Civil
Law countries refer to it as “droit d’auteur.” Although they both generally
recognize the same principles and protect the same type of creations, some
differences can be detected between the U.S. Copyright and the Civil law
copyright, which mainly concerns copyright registration.
Copyright was first born in the 1500s in England after the invention of the first
printer that led to the mass production of books. As a starting point, copyright
was granted to printing companies but eventually, the authorship of creators was
recognized with the implementation of the Statute of Anne in 1710. As the first
trace of copyright protection, the Statute provided 14 years of exclusivity for
authors and their assigns, starting with the date of the first publication 1. With the
idea of copyright spreading into the world, the Berne Convention 2 enclosed
almost all of the principles relating to copyright and helped establish a semi-
uniform protection of works in all member states.
Ever since the adoption of the copyright protection system in the United States
under the 1790 Copyright Act, creators were compelled to “register their title
with a district court and deposit a copy with the Secretary of State 3” as a
mandatory formality to have their work protected. Today the registration of
copyright is applied to the U.S. Copyright Office and is no longer mandatory.

Although the Registration formality is persistent in the United States, the term
has not been defined by the Copyright Act of 1976 nor by prior legislation. It is
however understood by scholars as “sending to the Copyright Office a copyright
application, fee, and deposit of the work4” to obtain a title over the registered
creation. Nevertheless, Registration is not systematically given since the
Copyright Office has to assess the filing to either grant approval or dismiss the
application based on specific conditions.

1
Roger E. SCHECHTER and John R. THOMAS, Intellectual Property: The Law of Copyrights, Patents and
Trademarks, West Academic Publishing, 1st ed., 2003, p 13.
2
The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne
Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland,
in 1886. The Berne Convention has 181 contracting parties, most of which are parties to the Paris Act of 1971.
https://www.wipo.int/treaties/en/ip/berne/
3
E. SCHECHTER op.cit. p 15.
4
https://www.law.cornell.edu/wex/copyright_registration
Synda SOMAI—Copyright Registration LLM in Common Law

When the concept of copyright protection prospered, international treaties

consecrated the right to recognize authors’ works and to grant legal protection to
nationals and foreigners alike under the national treatment principle 5. However,
the registration formality resisted even with international pressure especially
when implementing the Berne Convention that specifically states that “The
enjoyment and the exercise of these rights shall not be subject to any
formality6.” Although the U.S. had to relax some of its formalities regarding
copyright protection especially towards foreigners, debate regarding the
copyright registration requirement towards nationals remained unsolved and still
distinguishes the U.S. from all other copyright systems7.
Other countries have provided for voluntary registration services such as
“L’Organisme Tunisien des Droits d'Auteur et des Droits Voisins 8” (OTDAV)
in Tunisia which is established according to the article 48 of the law N° 94-36,
of 24 february 1994, related to the Artistic and Literary Intellectual Property and
modified June 23rd 2009. It is a public non-administrative institution, financially
independent and operating under the guardianship of the Tunisian Ministry of
Cultural affairs. Its mission is to manage collectively the copyrights and related
rights of its members. Another example of such services is « Le Conseil
supérieur de la propriété littéraire et artistique9 » (CSPLA) in France.
The U.S. Congress established The U.S. Copyright Office since 1897 with the
mission of “administering the national copyright system and providing advice
on copyright law to congress, federal agencies, the courts and the public.10”
Today, although the U.S. recognizes copyright protection and does not impose
mandatory registration to creators, this formality is still a condition to filing an
infringement lawsuit11, which justifies this comparative research with the
Tunisian system as a Civil Law country perpetuating the voluntary registration

5
Article 5 of the Berne convention for the Protection of Literary and Artistic Works of 1886.
6
Article 5(2) of The Berne Convention for the Protection of Literary and Artistic Works. This provision is also recognized
under TRIPS Agreement Article 9(1) “Members shall comply with Articles 1 through 21 of the Berne Convention
(1971) and the Appendix thereto. However, Members shall not have rights or obligations under this Agreement
in respect of the rights conferred under Article 6bis of that Convention or of the rights derived therefrom.”
7
David R. CARDUCCI, “Copyright Registration: Why the U.S. Should Berne the Registration Requirement”, Georgia State
University Law Review, Vol. 36, No. 3, Art.7, May 2020, p 897.
8
Article premier du Décret du Ministre de la Culture n° 2013-2860 du 1er juillet 2013, relatif à la création de
l'organisme tunisien des droits d'auteur et des droits voisins et fixant son organisation administrative et
financière et ses modalités de fonctionnement.
9
« Le Conseil supérieur de la propriété littéraire et artistique (CSPLA) est une instance consultative chargée de conseiller le
ministre de la culture en matière de propriété littéraire et artistique. Il est également un observatoire de l’exercice et du
respect des droits d’auteur et droits voisins et peut aider à la résolution des différends relatifs à l’application de la législation
en la matière sur des sujets qui mettent en cause les intérêts collectifs des professions. » de
https://www.culture.gouv.fr/Thematiques/Propriete-litteraire-et-artistique/Conseil-superieur-de-la-propriete-litteraire-et-
artistique
10
https://www.usa.gov/federal-agencies/copyright-office
11
17 U.S.C. § 411(a)
Synda SOMAI—Copyright Registration LLM in Common Law

model and providing for less rigid compliance rules. This study will evaluate the
relevance of the American copyright registration concept and whether its
persistence is justified.
The underlying issue will concern the scope of copyright registration.
To dissect this question, the analysis will first tackle the conditions of copyright
registration (I) before exposing the outcomes of the copyright registration
system (II).
I) The conditions of copyright registration
The generic almost internationally recognized criteria 12 for admitting the
protection of some intellectual creation; such as the originality of the work
and its creative factor, grant systematic copyright attribution once the work
has been presented onto a medium to the public. Although the U.S. copyright
law acknowledges this substantive criteria, other formal requirements have to
be fulfilled to obtain a valid registration.
Under the US Copyright Act, registration of the work at the Copyright Office
requires procedural (A) and substantive conditions (B).
A) Procedural registration’ conditions
The first formality conditioning the copyright registration concerns the timing of
the registration process. According to Title 17 U.S.C. §§ 302-305 and 408(a),
registration may be made at any time before the copyright has entered the public
domain. In general, a work enters the public domain in the United States when
"its full copyright term has expired13." Which is for the life of the author plus an
additional 70 years. Under Tunisian law, it also lasts for the author’s life plus
only fifty years after.
Under American law, all works, published or unpublished, must be registered
prior to the infringement. Particularly, a published work must be registered
within three months of publication.
As for the procedural requirements, mainly three items must be submitted to the
Copyright Office by the applicant. Section 409 identifies 10 points of the data
categories that must be included in this application and The Register of
Copyrights has endorsed additional requirements through regulation14.
First, the applicant must file an application form containing specific information
of his work. The Copyright Office has created different forms for different types
12
Article Premier de la loi LA LOI Tunisienne N° 94-36, du 24 février 1994, RELATIVE À LA PROPRIÉTÉ LITTÉRAIRE ET
ARTISTIQUE, telle que modifiée et complétée par La Loi N° 2009-33 du 23 Juin 2009; L.112-1, L.112-3, L.112-4 du Code
Français de la propriété intellectuelle and Title 17 U.S. Code § 102 - Subject matter of copyright: In general.
13
Golan v. Holder, 565 U.S. 302, 307 (2012).
14
Code of Federal Regulations Title 37 CFR § 202.3 - Registration of copyright.
Synda SOMAI—Copyright Registration LLM in Common Law

of works, including Form TX for non-dramatic literary works and Form VA for
visual arts works. This enables the Office to gather detailed information
concerning specific types of works15.
The registration fee is the second requirement for registration. Section 708 of the
statute specifies the fee schedule, which currently includes a registration fee of
$65 for the online standard application and $125 for paper filings. While this
may be somewhat inexpensive, the registration process can become extremely
costly for creators who produce a large number of works in a relatively short
amount of time, such as commercial photographers. To address this issue, the
Code of Federal Regulations, Title 37 allows for the registration of certain
groups of related works for a single fee16. The fee schedule may change as the
statute allows the Register of Copyrights to raise fees to keep up with the
Consumer Price Index.
Registration under Tunisian law is priced currently at 30 DT per year for literary
and artistic works and at 150 DT per year for architectural designs and
software17, which also can be regarded as burdensome for highly producing
creators but contrastingly, no distinction exists between registering a group of
works or an individual one.
Lastly, a "deposit" is the third requirement for an adequate copyright registration
application. Sections 408 (b) and (c) of the current act address registration
deposits, and the requirements vary based on whether the work in question is
published or unpublished. In the case of unpublished works, the registration
application must be supplemented by one complete copy or phonorecord of the
creation18. Alternatively, if the work has already been published, two complete
copies or phonorecords of the "best edition19" are needed to be submitted. if
however, the work was first released outside of the United States, then only one
copy is required20.
Regulations include comprehensive clarifications and embellishments to the
deposit requirements. For instance, when the work is very large, section 202.21
of the Code of Federal Regulations21 provides that an "identifying material" may
be submitted instead of a deposit copy of the actual work. Once submitted, these
materials will be reviewed by the Copyright Office, which must grant the

15
E. SCHECHTER op.cit p 92.
16
Code of Federal Regulations op.cit.
17
Article 4 of the decree gives discretionary power to the general director of the organism to set and update
inscription fees available at the official OTDAV website : http://www.otdav.tn/index.php/fr/services/deposer-
vos-oeuvres/tarifs-de-depot
18
E. SCHECHTER op.cit p 92.
19
Defined by the US Copyright Act § 101 as the edition qualified by the "Library of Congress to be most suitable
for its purposes."
20
17 U.S.C.A. § 408(b).
21
37 CFR § 202.21
Synda SOMAI—Copyright Registration LLM in Common Law

registration if "the material deposited constitutes copyrightable subject matter

and... the other legal and formal requirements... have been met22."
Under the U.S. system, any party with an exclusive right in the copyright may
register it at any time during the term of such copyright. Basically, not only can
the owner of copyright in a book register the claim of copyright, but so can the
owner of exclusive translation rights to that book23. Under Tunisian law, article
5 of the 2013 decree provides that members of the organism are copyright
holders, their successors, and holders of rights related to copyright can apply to
register in the OTDAV.

To sum up, the registration requirements under the US Copyright Act are more
formal and extensive when compared to the simple adherence procedures of the
Tunisian OTDAV agency which is justified by the considerably different nature
of the two institutions as well as their main purpose. This does not however
undermine the similarity between them regarding the habilitated persons to
apply for registration.
In addition to the forwarded formal requirements, the registration process has
substantive requirements.
B) Substantive registration’ conditions
These substantive conditions concern the subject-matter of copyright,
particularly the copyrightability of the work. Section 102(a) of the Copyright
Act states that the subject matter of copyright includes several categories of
works such as “Literary works, Musical works including any accompanying
words, Motion pictures and other audiovisual works, Architectural works…
etc.” Subcategories of such works are designated by Section 103(a) indicating
that the subject matter of copyright also includes derivative works, compilations,
and collective works24. Congress also granted federal courts the authority to
interpret the scope of existing subject matter categories, but the authority to
create entirely new authorship categories is exclusive to
25
Congress' discretion . Tunisian law has also stated the numerous categories of
artistic and literary works26 and the subcategories27 to these works but the law
has not mentioned if additional works –other than the ones categorized- can be
added.

22
17 U.S.C.A. § 410(a)
23
E. SCHECHTER op.cit p 91.
24
UNITED STATES COPYRIGHT OFFICE, Compendium of U.S. Copyright Office Practices, Shira PERLMUTTER (Ed.),
Washington, 3rd ed., 2021, p 55.
25
Federal Register, Vol. 77, No. 121, June 22, 2012, Rules and Regulations p 37607.
26
Article Premier de la loi LA LOI Tunisienne N° 94-36, du 24 février 1994, RELATIVE À LA PROPRIÉTÉ LITTÉRAIRE
ET ARTISTIQUE.
27
Id. Article 5
Synda SOMAI—Copyright Registration LLM in Common Law

The Copyright Act protects “original works of authorship fixed in any tangible
medium of expression, now known or later developed, from which they can be
perceived, reproduced, or otherwise communicated, either directly or with the
aid of a machine or device28.” The Copyright Office applies U.S. copyright law
pursuant to title 17 of the U.S. Code in determining whether a work is
copyrightable, even if the work was created in a foreign country, first released in
a foreign country, or created by a citizen, domiciliary, or habitual resident of a
foreign country29. Additionally, the work must be "sufficiently permanent or
stable30 to permit it to be perceived, reproduced, or otherwise communicated for
a period of more than transitory duration" in a copy or phonorecord.
Practically, before federal copyright protection can be attached, the work must
be written down, taped, filmed, or otherwise concreted in some way. Once fixed,
the original work is immediately protected by copyright laws and naturally
fulfills another substantive requirement of a valid registration. The fixation
doctrine can also be reversed: there is no federal copyright protection for
unfixed creative works. If the work or medium of expression only exists for a
brief period of time, is continuously shifting, or if the medium does not enable
the essential characteristics of the work to be reviewed. The Office may refuse
registration31 for a brand new song that the singer can perform from memory but
has never written down32. However, most works are fixed by their very nature,
such as an article printed on paper, a song recorded in a digital audio file, a
sculpture rendered in bronze, a screenplay saved in a data file…etc.
The Tunisian law also recognizes a very narrow restriction towards non fixed
works which can only be encompassed in the category of mere ideas that has
been excluded from copyright protection in Article 1 Chapter 1 of the Tunisian
Copyright law33. On the other hand Article 18 added by virtue of the 2009
amendment, explicitly states that copyright protection is granted to all works
even those that are not fixed on a material support. This provision further
enlarges the legal protection scope of copyright under Tunisian law as compared
to the U.S. Copyright law that dismisses systematically unfixed works.
As for the originality criterion, it is considered “the bedrock principle of
copyright” and “the very premise of copyright law 34.” Originality can be
dissected into two main requirements: first, the work must be independently
28
17 U.S.C. § 102(a).
29
UNITED STATES COPYRIGHT OFFICE op.cit p 52.
30
17 U.S.C. § 101 defined the term “Fixed”.
31
UNITED STATES COPYRIGHT OFFICE op.cit p 54.
32
E. SCHECHTER op.cit p 28.
33
LA LOI N° 94-36, du 24 février 1994, RELATIVE À LA PROPRIÉTÉ LITTÉRAIRE ET ARTISTIQUE, TELLE QUE
MODIFIÉE ET COMPLÉTÉE PAR LA LOI N° 2009-33 du 23 Juin 2009, alinéa 2.
34
Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 347 (1991).
Synda SOMAI—Copyright Registration LLM in Common Law

created and not a copy of another author’s expression. Generally, the Copyright
Office will accept an applicant’s claim that the work was the independent
creation of the named author unless the statement is contradicted by information
existing elsewhere in the registration records 35. Second is the minimum
creativity requirement. The court stated that:”[T]he requisite level of creativity
is extremely low.” Even a “slight amount” of creative expression will suffice.
“The vast majority of works make the grade quite easily, as they possess some
creative spark, ‘no matter how crude, humble or obvious it might be 36.”
Practically, the work shouldn’t be predictable, inevitable, mechanical, or very
typical. Despite the very low standard of creativity required for registration,
some “narrow categories of works” may require a higher creativity level to be
accepted by the Copyright Office37.
It is worthy to note also that distinctive or innovative works do not necessarily
satisfy the originality criterion. The Office does not conduct a comparative
approach when assessing the registration applications; it rather operates in a
casuistic manner38.
Under U.S. Law, fixation and originality issues arise in both copyright litigation;
and when an author applies for registration. According to § 701(d) of the
Copyright Act, registration decisions are appealable as “agency actions” under
the Administrative Procedure Act39. Courts will usually consider the Office of
Copyrights' decision on these issues, and the prevailing rule is that the Register's
judgment will be reviewed under a highly discretionary power. In infringement
litigation defendants often raise the question of appropriate fixation of the work,
its originality, and whether the reclaimed material is part of the public domain.
For this reason, the U.S. Copyright Office examines the registration materials to
determine compliance with formal requirements, whether the submitted work is
copyrightable, and whether the considered facts are not contradicted by data in
the deposit copies or in the registration materials40.
Additionally, the Office will only consider works that are the fruit of “the
creative powers of the mind41” which is why it will refuse any application of a
work that was not created by a human being42.

35
UNITED STATES COPYRIGHT OFFICE op.cit p 56.
36
Feist Publications case 499 U.S. p 346.
37
Id. p 359.
38
Federal Register op.cit p 51.
39
E. SCHECHTER op.cit p 36.
40
UNITED STATES COPYRIGHT OFFICE, Compendium of U.S. Copyright Office Practices, Shira PERLMUTTER (Ed.),
Washington, 3rd ed., 2021, p 151.
41
https://www.wipo.int/wipo_magazine/en/2017/05/article_0003.html
42
Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884).
Synda SOMAI—Copyright Registration LLM in Common Law

To conclude, the U.S. Copyright law maintains higher standards as to offer

particular protection to works and expressions whereas under the Tunisian
system, fewer barriers are established and maximum protection is recognized
with no required registration or formalities. This variation will certainly affect
the consequences of copyright registration.
II) The outcomes of copyright registration
Because copyright registration is a procedure to enter the U.S. record of
copyrights, several outcomes are subsequently due. We can mainly
distinguish between advantages of copyright registration (A) and numerous
drawbacks (B).
A) The advantages of copyright registration
Much of the academic literature leans in favor of the formality procedures for a
number of reasons. A copyright registration system has the same advantages as
any other type of organized record keeping. It creates a public record system to
assist would-be users of copyrighted material in locating the material's owners
and obtaining the necessary permissions.
Registration formalities have also received favorable mention in policy
documents addressing the more serious deficiencies in copyright. 43One example
is the problem of orphan works which is a term used to describe the situation
where the owner of a copyrighted work cannot be identified and located by
someone who wishes to make use of the work in a manner that requires
permission of the copyright owner.44 Generally speaking, A registration creates a
public record that includes crucial details about the claimed work's authorship
and ownership, as well as relevant data about the work, such as title, year of
creation, date of publication (if any), and the type of authorship contained in the
work45. Many scholars assume that The United States has traditionally required
registration prior to litigation because administrative scrutiny of copyright
claims can reduce lawsuits, saving time and money 46. Add to that the electronic
registration medium that is highly recommended by the U.S. Copyright Office
and that allows faster, more organized data collection and easier registration for
applicants and officers.

The Tunisian counterpart, the OTDAV, plays the role of a governmental agency
offering various services to the applicants. OTDAV is allowed by decree to be
representing the affiliated copyright owners. It allows the holders of copyright

43
UK IPO, The Way Ahead: A Strategy for Copyright in the Digital Age (2009), pp. 108-109
44
US Copyright Office, Report on Orphan Works: A Report of the Register of Copyrights (2006) 15. To similar effect, see Art 2
of Directive 2012/28/EU of the European Parliament and of the Council of 25 October 2012 on Certain Permitted Uses of
Orphan Works, [2012] OJ L 299, 5.
45
UNITED STATES COPYRIGHT OFFICE op.cit p 34.
46
E. SCHECHTER op.cit p 39.
Synda SOMAI—Copyright Registration LLM in Common Law

related rights to effectively and legally use and benefit from the registered work,
it also distributes the earned revenues from the usage of the works to the
corresponding beneficiaries, and facilitates overall cooperation between
copyright applicants and bodies who wish to invest or legally use a registered
creation47.

the OTDAV agency allows its members to voluntarily benefit from the title
advantage. By virtue of Article 4 of the Tunisian Law of copyright, the works
registered in the OTDAV Organism grant a simple presumption of title to their
author that can serve as evidence in an infringement lawsuit, but can also be
contested by any other proving material.48 The organism offers the privilege of
evidencing the creation date; author identity and other relevant characteristics
that help the claimant prove his copyright related rights49.

Similarly, the U.S. Copyright Act § 410(c) entitles a registration to be prima

facie evidence of the validity of the copyright and all other facts stated in the
registration certificate if made before or within five years of the work's first
publication. Once registered, there will be a presumption that the work is
original, which exempts the plaintiff from the need to prove in court, unless the
defendant chooses to challenge it50. The similarity that can be noticed between
the two legal systems is that both institutions provide for a challengeable piece
of evidence.

Even if the registration is made after the time limit has passed, "the evidentiary
weight to be accorded to the certificate of registration... shall be at the
discretion of the court51." In the event of litigation, the registration certificate's
evidentiary value can be a significant asset to the copyright owner, allowing
registration to be worthy.

The second major incentive for registration is that timely registration is required
for some of the more important remedies available under current law.
A copyright owner should register as soon as possible to ensure that the
powerful remedial tools of attorneys’ fees and statutory damages are available.
Furthermore, this provision applies to both U.S. domestic and non-domestic
works52. As a result, while registration is not legally required for non-U.S. works
to file for infringement, owners of copyrights in such creations have compelling
reasons to register their works promptly.
47
Article 3 Décret n° 2013-2860 du 1er juillet 2013 op.cit.
48
LA LOI N° 94-36, du 24 février 1994, Alinéa 3, The article mentions a limit to the evidenciary ability « jusqu’à preuve
contraire ».
49
Article 3, Décret n° 2013-2860 du 1er juillet 2013 op cit.
50
E. SCHECHTER op.cit p 88.
51
17 U.S.C.A. § 410(c)
52
17 U.S.C.A. § 412
Synda SOMAI—Copyright Registration LLM in Common Law

There are a few other advantages to registration dispersed throughout the

Copyright Act. For example, the recording of a transfer of ownership in a
copyright will provide constructive notice of the facts surrounding that transfer,
albeit only if registration for the work at issue has also been made. Although
these effects are not as significant as the prima facie effect and the enhanced
remedies for infringement, they have a role of reinforcing the general statutory
approach of inciting a large number of claimants to register53.

In sum, the registration formality seems to be justified under the U.S. Copyright
Law, and almost equally beneficial under the Tunisian system. Nevertheless,
registration formalism has its drawbacks.
B) The drawbacks of copyright registration
Despite the inevitable valid role of copyright registration that provides for a
more organized database and codifies the multiple “creations of the mind”,
various scholars have expressed their disagreement with this system, especially
because the Berne Convention set out a “no formality” principle as to the
protection of foreign works to all member states. The United States’ particularity
in requiring mandatory registration as a condition to file infringement lawsuits
questions the rationality of imposing a more rigid system for nationals than
foreigners seeking copyright protection54. This has led extensive literature to
discuss the relevance of such copyright formalism.
Some scholars replied to those praising the registration system formalism under
the “public interest” argument by highlighting the difficulty of identifying one
common interest among all creators “What happens when the interests of
authors/ creators and the general public, or that of creators and those who
invest in or distribute creative works diverge? Or if one of these groups claims
to speak in the name of all? 55” This statement can be further expanded regarding
the Tunisian law whereby OTDAV is the regulating governmental body for both
copyright and copyright related rights which are naturally diverging interests.
Some studies criticized the unilateral management of both interrelated rights by
the same governmental agency stating that it might trigger an issue of
conflicting interests especially since the agency operates under the supervision

53
E. SCHECHTER op.cit p 91.
54
17 U.S. Code § 104 - Subject matter of copyright: National origin
55
Dev S. GANGJEE, “Copyright formalities: A return to registration?” in Rebecca GIBLIN and Kimberlee WEATHERALL (Eds.),
What if we could reimagine copyright?, Canberra, ANU Press, 2017, p 224.
Synda SOMAI—Copyright Registration LLM in Common Law

of the ministry of cultural affairs which is also a main source of financing to

multiple creators56.
Neither the decree nor the 1994 law imposes a distinguished duty on part of the
OTDAV to act according to the authors' interest when pursuing management of
their copyright. Equally, applicants who choose to mandate management of
copyright to the OTDAV lack any discretionary authority over their works that
become subject to the executive director's regulations also subject to the
approval of the minister of cultural affairs57.
In the U.S., for numerous creators, the registration process can be cumbersome.
Unlike large publishing houses or record labels, which can hire personnel whose
sole function is to prosecute copyright registration applications, the local garage
band, independent commercial photographer, and aspiring filmmaker may lack
the resources to commit to compliance with a registration system 58. However, it
appears to be extremely unfair to declare the copyright in these works voided
simply because the authors find it challenging to comply with the registration
system.
The obligation of registration prior to activating the right to sue against
infringement has been condemned as discriminatory and unnecessary especially
by civil law scholars who embrace the Droits d’auteurs system. They consider
the registration process redundant since the copyright is admittedly “born with
the work59” and thus protection is supposedly guaranteed, which renders
conditioning the access to infringement litigation absurd.
Another issue was also raised before the Supreme Court concerns the exact
definition of registered copyright. After submission of registration, the examiner
has to assess the application file. If he finds that the work is not copyrightable,
registration will be denied, and such findings are frequently, but not always,
upheld by the courts60. If registration is initially denied, the registration applicant
may file an internal appeal to the Board of Appeals within the copyright office,
and then seek judicial review.
Courts were conflicting about to this question thus, when some adopted the
application approach, others applied the registration approach which meant that
56
Consortium PROMAN, Appui au Ministère de la Culture et de la Sauvegarde du Patrimoine pour la concrétisation
d’actions prioritaires du programme de l’année 2015, Suzanne CAPIAU (ed.), Tunisie, 2016, p 32.
57
Ibid.
58
E. SCHECHTER op.cit p 90.
59
JC GINSBURG, “A Tale of Two Copyrights: Literary Property in Revolutionary France and America” Tulane Law Review, No
64, 1990, pp. 991-994.
60
E. SCHECHTER op.cit p 93, (footnote 73): Norris Indus., Inc. v. International Tel. & Tel. Corp., 696 F.2d 918 (11th Cir. 1983):
upholding Copyright Office determination that wire-spoked wheel covers were utilitarian objects not eligible for copyright
protection, in contrast with Atari v. Oman, 979 F.2d 242 (D.C.Cir.1992) (reversing copyright Office determination that video
game was not eligible for copyright because of lack of originality).
Synda SOMAI—Copyright Registration LLM in Common Law

more unpredictability concerned the copyright litigants. Advocates of the

registration attitude claim that registration of a copyright is only complete once
the Copyright Office rules on the application, either accepting or rejecting it. In
contrast, the application approach's supporters suggest that registration is
confirmed when the applicant deposits the necessary materials in the Copyright
Office along with the application. Eventually, the Supreme Court has finally
settled the debate in Fourth Estate Pub. Ben. Corp. v. Wall-Street.com 61
adopting the registration approach62 which means that applicants who have
applied to the Copyright Office and got rejected are not allowed to file against
infringement which also denies them the right to receive statutory damages or
attorney’s fees. Consequently, one might conclude that alleging that copyright
protection is born from the mere creation of the work is not practically valid
under the United States Copyright law as this protection premise is conditioned
by the copyright registration validity.
On the other hand, the Tunisian system, embracing a civil law framework,
recognizes similarly the protection of copyright since the birth of the creation
and makes application to the OTDAV optional, but consequently lacks a
comprehensive public record of registered works which compromises the
organism’s efficiency in taking actions to promote the goals of such institution.

Conclusion
To sum up, The United States distinguished copyright registration does serve its
core premise, which is the constantly updated public record, it helps overcome
the problem of orphan works and provides to the complainant a presumption of
title if he wishes to file an infringement lawsuit. However, the requirement that a
registration should precede a filing for an infringement lawsuit is framed as a
wolf in sheep’s clothing. It is true that scholars in favor of keeping such
formality celebrate this condition as an inciting factor towards registration and
its many benefits. In contrast, they neglect how this formality equally deprives
those who did not register or, following the recent Supreme Court decision, have
had their application rejected for a particular reason, from accessing their right
to granting copyright protection as claimed by 17 U.S. Code § 102(a).

61
LLC - 139 S. Ct. 881 (2019)
62
“The Court concluded that the registration approach reflected the only satisfactory reading of § 411(a)’s text rejecting
petitioner's application approach. It held that the meaning of “Registration has been made” was not when an application
for registration was filed, but when the Register of Copyrights had registered a copyright after examining a properly filed
application.” From https://www.lexisnexis.com/community/casebrief/p/casebrief-fourth-estate-pub-ben-corp-v-wall-
street-com-llc
Synda SOMAI—Copyright Registration LLM in Common Law

Compared to the Tunisian system, the registration formalities are more strict,
rigorous and extensive which is justified by the importance of the Copyright
Office’s final say regarding the registration process that conditions access to
title. In contrast, the Tunisian law provides for administrative regular procedures
that do not alter the title of the author nor its creation that is protected even when
he has not applied to adhere to the OTDAV agency. However, the guardianship
of the government over the OTDAV opens the possibility for conflicting
interests that may compromise transparency and justice.
Overall, the Tunisian system copyright law has shown to be a lot more relaxed
and compliant with the international tendencies of systematic copyright
protection rather than its American counterpart where copyright registration is
far more institutionalized.
Synda SOMAI—Copyright Registration LLM in Common Law

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