Prior to the United States adherence to the Berne Copyright Convention becoming effective on March 1, 1989, publication of a copyright work, without inclusion of a notice, could destroy the copyright in the work, and registration of the work with the Copyright Office was an essential prerequisite before one could bring suit against an infringer of the copyright. [79]

The Berne Convention requires that for those who are eligible to take advantage of it, copyright protection should be available without formalities and since March 1, 1989, the notice provisions are no longer in effect and the registration provisions no longer apply to works produced outside the United States and whose claim to protection in the United States arises under the Berne Convention, for example as a result of the author being a national of a Berne Convention Country and not resident in the United States. If rights arise in the United States in some other way, the old rules regarding registration still apply. The courts are split on the question of whether an actual registration certificate or merely the filing of an application for registration is required before an infringement action can be brought with respect to a non-Berne Convention work. [80]

Although copyright exists automatically by virtue of creation of the work and, for works qualifying under the Berne Convention registration, is no longer required before one can sue, there remain a number of advantages in registering a work with the Copyright Office. These include: the ability to obtain attorney fees and statutory damages which may be important if one cannot prove economic damages; registration provides prima facie evidence of the facts stated thereon; [81] and protection is provided against a purported subsequent fraudulent assignment of rights in the work. Registration is a relatively simple procedure. However, it does normally require deposit of “identifying portions” of a computer program, although “special relief” may be available, for example if the program contains trade secret information. Even though a later version of computer software may be entitled to copyright protection in its own right as a derivative work, failure to obtain a separate registration for it may not be fatal to an action if the bulk of the program is the same. [82] On the other hand, failure to submit copies of the original work may preclude the grant of a valid copyright registration, even if copies of later versions are submitted. [83]