COPYRIGHT, INTERNATIONAL
The manner in which the exclusive rights to reproduce and distribute copies of various intellectual productions may be obtained in foreign countries.
International copyright protection can be secured in only two ways: (1) by obtaining separate and independent COPYRIGHT protection in each of the countries where such protection is sought, in compliance with the laws of each country; or (2) through international conventions or treaties that provide for the mutual recognition and protection of the literary and INTELLECTUAL PROPERTY of the citizens of the nations that are parties to such treaties or conventions. Citizens of the United States who seek copyright protection in foreign countries may sometimes avail themselves of the first method,
sometimes the second, and sometimes neither,
depending upon the laws of the countries in
which the foreign copyrights issue.
In 1989, the United States for the first time
became a signatory to the oldest and most
widely approved international copyright treaty,
the Berne Convention for the Protection of Lit-
erary and Artistic Works (828 U.N.T.S. 221, S.
Treaty Doc. No. 99-27). In doing so, the United
States ended a long history of noncompliance
with the Berne Convention, finally joining the
vast majority of developed countries. As of the
mid 1990s, 96 countries had signed the Berne
Convention.
Among the works protected by the Berne
Convention are books, pamphlets, and other
printed materials; dramatic and dramatico-
musical works and musical compositions; draw-
ings and paintings; works of architecture,
sculpture, engraving, and lithography; illustra-
tions and geographic charts, plans, and sketches;
translations, adaptations, arrangements of
music, and collections of various works; and
cinematographic and photographic works.
History of the Berne Convention
The Berne Convention was first adopted on
September 9, 1886, in Berne, Switzerland, and
was later revised at several conferences: Paris,
1896; Berlin, 1908; Berne, 1914; Rome, 1928;
Brussels, 1948; Stockholm, 1967; and Paris,
1971. The agreement grew out of a perceived
need in the late nineteenth century to protect
authored works from international PIRACY,or
unauthorized copying. A growing demand for
new printed materials during this era was moti-
vating many publishers to reprint unauthorized
versions of foreign works. Authors whose works
were pirated had little recourse against those
publishers because copyright laws were typically
enacted on a national basis. Such laws gave
copyright protection only to authors who were
nationals of the country in which the laws were
enacted.
A few countries negotiated bilateral
treaties—two-party contracts termed reciprocal
agreements—that protected the nationals of
both countries, but such arrangements were
rare. In the mid nineteenth century, a non-
government organization, the Association Lit-
teraire et Artistique International, was formed in
Paris and led the movement for international
copyright protection. This organization created
the draft of what eventually became the Berne
Convention. Among the first countries adhering
to the Berne Convention were France, Germany,
and the United Kingdom.
The Berne Convention established several
principles of international copyright that have
remained through all of the treaty’s versions.
First, rather than operating on a system of reci-
procity (under which a country protects foreign
authors only to the extent that its own authors
are protected in return), the convention works
on the principle of national treatment (under
which a country extends the same protection to
foreigners that it accords to its own authors).
Second, rather than trying to impose the same
standards on all nations, the convention solved
the problem of national differences in copyright
protection by establishing minimum standards
of protection that all signatories must meet.
Thus, member countries may treat the copy-
righted work of their own nationals in any way
they choose, but they must treat works from
nationals of other treaty members according to
minimum treaty standards. Third, the conven-
tion provides for automatic protection of copy-
righted works as soon as they are created,
without any required formalities, such as notice
or registration.
The United States and the Berne Convention
Influenced greatly by its early status as a net
importer of copyrighted materials, the United
States resisted joining the Berne Convention for
over a century. Adherence to the treaty’s conven-
tions would have required U.S. publishers of for-
eign works—many of whom produced pirated
copies—to pay ROYALTIES and fees to foreign
copyright holders, thus causing a significant
amount of money to flow overseas. However, by
the end of WORLD WAR II, the United States had
become a major exporter of copyrighted materi-
als, and it became clear that it would be to the
country’s economic advantage if its own authors
and copyright holders could be assured of
receiving royalties from overseas publishing.
At that point, rather than joining the Berne
Convention, the United States lobbied for a dif-
ferent international treaty, the Universal Copy-
right Convention (UCC) (25 U.S.T. 1341,
T.I.A.S. No. 7868), established in 1952 under the
auspices of the U.N. Educational, Scientific, and
Cultural Organization (UNESCO). The United
States became a member of the UCC in 1955.
Many countries that already belonged to the
Berne Convention—including France, West
Germany, and Japan—also joined the UCC. The
UCC generally operated on the national-treat-
ment principle, thus allowing U.S. authors to
receive the same copyright protection in a spe-
cific country that the country afforded its own
authors, and not requiring the United States to
reciprocate that treatment for foreign authors.
The United States experienced still more
international pressure to join the Berne Conven-
tion after passage of the Copyright Act of 1976
(17 U.S.C.A. §§ 101 et seq.). This statute
brought several important features of the Berne
Convention into U.S. law, including relaxed
standards on the formalities of copyright regis-
tration, deposit, and notice, and new provisions
that extended the duration of copyright protec-
tion to the Berne minimum of the author’s life
plus 50 years (which has since been extended to
life plus 70 years). The act also phased out a pro-
tectionist manufacturing clause that had
required foreign works to be set in type in the
United States in order to receive U.S. copyright
protection—a clause that had benefited U.S.
printers for decades. (In fact, LOBBYING by
printers had long stymied attempts to make the
United States part of the Berne Convention.)
By the 1980s, the United States was still one
of the few major developed countries not abid-
ing by the Berne Convention. When it became
clear that the United States’ role as a pariah in
international copyright circles had begun to
erode its position in reaching other trade agree-
ments concerning intellectual property, Con-
gress finally passed the Berne Convention
Implementation Act of 1988 (Pub. L. No. 100-
568, 102 Stat. 2853). That act made the United
States a party to the Berne Convention begin-
ning in 1989, officially ending U.S. copyright
isolationism.
Protection of Copyright in the Digital Age
Protection of the interests of copyright own-
ers and enforcement of their rights has become
more difficult since the rise of INTERNET around
the world. The World Wide Web, a component
of the Internet, now consists of trillions of indi-
vidual web pages, and according to some esti-
mates, the number of Internet users has
increased to more than 500 million.
The Internet has created a new avenue for
copyright infringement on a global scale.
Although virtually all types of works that are
subject to copyright law can be transferred
through digital networks, transfers of music
recordings have received the most attention. A
web-based company, Napster, during the 1990s became the most well-known and heavily used portal for transferring electronic files containing
copies of music. Users of this system were capable
of transferring copyrighted works in a format
called MP3 (MPEG-1 Audio Layer 3) to
their home computers, with a sound quality that
was comparable to that of a compact disc. The
musical compositions in most of these files were
copyrighted, and owners of those copyrighted
materials complained that the file transfers
infringed their copyrights. The Recording
Industry Association of America sued Napster,
eventually prevailing and causing Napster to
close down. Napster was not merely a phenomenon
in the United States and North America.
The company had an estimated 16.9 million
worldwide users, and the system accommodated
about 65 million downloads.
Domestic copyright law is limited in its protection
of some of these works because the
Copyright Act generally has no application outside
of the United States. For example, in Subafilms,
Inc. v. MGM—Pathe Communications
Co., 24 F.3d 1088 (9th Cir. 1994), U.S. Court of
Appeals for the Ninth Circuit noted as much in
holding that a copyright holder could not sue
individuals who distributed the plaintiff ’s
movies abroad, because the infringement
occurred outside of U.S. soil. Although the
Berne Convention, as well as such international
intellectual property treaties as the Geneva
Phonograms Convention and the Rome Convention,
protect such copyrights, additional protection
was needed.
In 1996, the World Trade Organization
approved the Agreement on Trade-Related
Aspects of Intellectual Property Rights (TRIPS),
which requires member countries to provide
certain levels of protection for copyright holders
in their countries.Additional protection came in
the form of so-called “digital treaties” approved
by the World Intellectual Property Organization,
including the Copyright Treaty and the
Performance and Phonograms Treaty. Both of
these treaties, which became effective in 2002,
clarified and extended the Berne and TRIPS
provisions by allowing copyright holders to
encrypt their works in order to protect their
rights.
