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

The 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 property limited in scope, it would further the purposes of the Convention without substantially complicating the current system of protection.