Protection in the United States for Non-U.S. Citizens ..................................................... 328
Foreign Works Entitled to U.S. Copyright Protection ................................................. 328
Foreign Works Not Entitled to U.S. Copyright Protection ....................................... 329
Compliance With U.S. Copyright Formalities ................................................................. 330
Restoration of Copyrights Under GATT Agreement ................................................... 330
Copyright Protection in Canada .................................................................................................... 336
Works Protected by Copyright .............................................................................................. 336
Scope of Copyright Rights .......................................................................................................... 336
Copyright Duration ........................................................................................................................337
Copyright Ownership ................................................................................................................... 339
Limited Fair Use Rights ................................................................................................................ 339
Copyright Notice .............................................................................................................................340
Copyright Registration .................................................................................................................340
Additional Information ................................................................................................................340
Marketing Your Work in Foreign Countries ............................................................................341
324 | THE COPYRIGHT HANDBOOK
There is no single body of international The Berne Convention
copyright law. Each country has its
own copyright law that applies within The world’s first major international
its own borders. However, through a series of copy right convention was held in Berne,
international treaties, almost all nations have Switzerland, in 1886. The resulting
agreed to give each other’s citizens the same agreement was called the Berne Convention
copyright protection they afford to their own for the Protection of Literary and Artistic citizens. If you take the correct procedural
Works, or the Berne Convention for
steps, your copyright will be protected in
short. The Berne Convention is the most
virtually every country in the world.
important international copyright treaty,
We’ll first examine copyright protection
with the highest standards of protection.
outside the United States for works by Amer- Almost all countries belong to the Berne
ican citizens or permanent residents, and
Convention.
then turn to copyright protection within the
In a nutshell, Berne member countries
United States for foreign citizens or nationals. agree that literary, artistic, and scientific works, including all types of writing, are
protected in the following ways.
International Protection for
U.S. Citizens and Nationals
Principle of national treatment
The protection afforded to written works by
Every country that has signed the Berne
the U.S. copyright laws ends at the United
Convention must give citizens or permanent
States borders. The extent of the protection
residents of other Berne countries at least
given to work by Americans outside the
the same copyright protection that it
United States is governed by international
affords its own nationals; this is known
treaties. The United States and most other
as national treatment. As a U.S. citizen or
major industrialized countries have signed
permanent resident, any protectable work
a series of international treaties, the most
of yours is entitled to national treatment
important of which is the Berne Convention. in every country that has signed the Berne
International copyright protection for works Convention.
by U.S. citizens and permanent residents
largely depends on the rights granted by
these international treaties.
CHAPTER 12 | INTERNATIONAL COPYRIGHT PROTECTION | 325
EXAMPLE: Carl, an American citizen and resi-
Minimal protections required
dent, publishes a biography of Czar Ivan the
Every Berne country is required to offer a
Terrible in 2018. One year later, while browsing
in a London bookstore he discovers a con-
minimum standard of copyright protection
densed version of his book published under
in their own country to works first published
another author’s name by a British publisher.
or created by nationals of other Berne
Since the United States and United Kingdom
countries. This protection must include:
have both signed the Berne Convention, if
• Copyright duration of at least the
Carl sues the British publisher and author for
author’s life plus 50 years.
copyright infringement in the British courts,
• The granting of moral rights to the
he will be entitled to the same treatment as
author. Moral rights are rights an
any British subject who brings this suit.
author can never transfer to a third
party because they are considered an
extension of his or her being. Briefly,
No formalities
they consist of the right to claim
No formalities, such as notice and registra-
authorship, to disclaim authorship of
tion, may be required for basic copyright
copies, to prevent or call back distri-
protection. However, some countries offer
bution under certain conditions, and
greater copyright protection if a copyright
to object to any distortion, mutila tion,
is registered or carries a particular type of
or other modifications of the author’s
notice. For example, in Japan and Canada,
work injurious to his or her reputation.
registration provides a means of making
The right to prevent colorization of
your work a public record and may thus be
black-and-white films is an example of a
helpful in case of an infringement action.
moral right. Moral rights are generally
Other countries have certain procedural
of most concern to visual artists.
requirements that must be followed
• Some provision allowing for fair dealing
before foreign works may be distributed
or free use of copyrighted works. This
within their borders, such as customs
includes material used in quotations
rules, censorship requirements, or other
for educational purposes, for reporting
regulations. Com pliance with these types
current events, and so forth. (In the
of formalities should be taken care of by a
United States, this is called fair use,
foreign agent hired by the author’s
publisher
and it is discussed in detail in Chapter
or the author or author’s agent.
10, “Using Other Authors’ Words.”)
326 | THE COPYRIGHT HANDBOOK
Copyright term for U.S. works
GATT
in Berne countries
In late 1994, the United States signed
Under the Berne Convention, copyright
the General Agreement on Tariffs and
protection must be granted for at least the
Trade, GATT for short. GATT is a
life of the author plus 50 years. However,
massive inter national treaty signed by 117
member countries can provide longer copy-
countries dealing with almost all aspects of
right terms if they wish. For example, most
international trade. For our purposes, what
European countries now have a copyright
is most important about GATT is that it
term of life plus 70 years, the same as in the includes a special agreement on intel ectual United States. You can find a useful chart
property cal ed Trade Related Aspects of
listing the copyright terms of all the nations Intel ectual Property Rights (TRIPS for
of the world at https://en.wikipedia.org/wiki/ short). TRIPS requires each member country List_of_countries%27_copyright_lengths.
to agree, at a minimum, to enact national
copyright laws giving effect to the substantive
Application of the Berne
provisions of the Berne Convention discussed
Convention to Works Created
above. However, moral rights, which are
Before March 1, 1989
general y not recognized in the United States,
were expressly left out of TRIPS. This means
As mentioned earlier, the United States was
that the United States cannot be subject to
a latecomer to the Berne Convention; it
GATT dispute settlement procedures over
did not join until March 1, 1989. The Berne
the scope of moral rights.
Convention does not apply to a work first
TRIPS requires all GATT member
published in the United States before that
countries to provide meaningful penalties for
date unless the work was also published in
copyright infringement. These must include
a Berne country at the same time (that is,
injunctive relief (including preliminary
within 30 days of each other). This is called
injunctions that can be obtained to stop
simultaneous publication. Before 1989,
infringing activities before trial) and
American publishers commonly had their
adequate monetary damages. In addition,
books published simultaneously in the United
member countries must adopt procedures
States and Canada or Great Britain (both
for excluding infring ing goods at their
Berne countries) so that they could receive
borders upon application by U.S. or other
the protection of the Berne Convention. This
copyright owners to their customs services.
fact was usual y indicated on the same page
GATT also includes mechanisms for
as the work’s copyright notice.
settlement of country-to-country disputes
CHAPTER 12 | INTERNATIONAL COPYRIGHT PROTECTION | 327
regarding implementation of these
copyright infringement. The WCT also
require ments through the World Trade
requires member countries to provide
Organization, an international agency based effective legal remedies against anyone
in Geneva and similar to the World Bank.
who removes or alters rights management
Special GATT remedies (for example,
information from digital works—that is,
withdrawal of tariff concessions) may be
electronically stored information about
imposed for violation of GATT rules.
who owns the copyright in the work. The
U.S. copyright law was amended in 1998 to
The WIPO Treaty
comply with these requirements.
The United States has signed yet another
Protections in Countries Not
international copyright treaty. This one
Covered by Conventions
was sponsored by the World Intellectual
Property Organization (WIPO), a
There are a handful of countries that have
United Nations agency based in Geneva,
not signed any of the copyright treaties
Switzerland. The treaty is called the WIPO discussed above and that are not a party to
Copyright Treaty (WCT).
trade agreements such as GATT.
The Berne Convention was last revised
These countries have no copy right
in 1979, and neither it nor the Universal
relations with the United States and provide
Copyright Convention (UCC) specifically
no protection for U.S. authors’ works. These
provided for copyright protection for digital countries include Eritrea, Ethiopia, Iran, works or computer software. The WCT was Iraq, and San Marino.
drafted in 1996 to help fill this gap. It was
signed by the United States in 1996 and has Bringing Infringement Suits
been signed by most other major industrial in Foreign Countries
nations.
The WCT requires member countries
If your work is infringed upon by a person
to enact copyright laws giving effect to
or an entity in a foreign country, the first
the substantive provisions of the Berne
thing to do is consult with an experienced
Convention. But perhaps the most important American copyright attorney. Even if the
aspect of the WCT is that it requires member infringement occurred in another country,
countries to give copyright protection to
you may be able to sue the infringer in the
works in digital form. This means, for
United States. In this event, an American
example, that unauthorized copying of
court would apply the copyright law of the
material placed on a website can constitute
foreign country, not American law. If you
328 | THE COPYRIGHT HANDBOOK
have to file suit abroad, you’ll need to hire
Works first published in the United States
a copyright attorney in the foreign country Any work first published in the United
involved to represent you. Your American
States is entitled to full copyright protection
copyright attorney should be able to refer
in the United States, no matter what
you to an experienced copyright lawyer in
country the author is a citizen of or lives in.
the country involved.
Before you go to the expense of filing
EXAMPLE: Kim, a citizen and resident of
suit, however, be sure to have your attorney
South Korea, first publishes a book of poetry
explain to you what remedies (for instance,
in the United States. His book is entitled to
monetary damages, injunctions) you will be
ful U.S. copyright protection.
entitled to if the suit is successful. Remember,
you’ll only be entitled to the same treatment Works first published in treaty countries that a citizen of the country involved would
> receive.
A work is also entitled to full copyright
Although the United States has been
protection in the United States if it is first
urging other nations to take copyright
published in a country that has signed any
infringement more seriously than they have of the following international copyright
in the past, some (particularly developing)
treaties:
countries still do not impose meaningful
• the Berne Convention
penalties on infringers. This means it may
• the Universal Copyright Convention
not be economically worthwhile to bring
• the GATT Agreement
infringement suits against infringers in
• the WIPO Copyright Treaty, or
some countries.
• a bilateral (country-to-country) copy-
right treaty with the United States
(these countries include Taiwan and
Protection in the United
Vietnam).
States for Non-U.S. Citizens
Almost every country in the world has
signed one or more of these treaties, includ-
We now examine copyright protection in
ing every major industrialized country. As a
the United States from the point of view of result, almost all works published in foreign non-U.S. citizens.
countries are entitled to full U.S. copyright
protection.
Foreign Works Entitled to U.S.
EXAMPLE 1: Pierre, a French citizen and
Copyright Protection
resident, publishes a book in France. Since
The following works by non-U.S. citizens or
France signed the Berne Convention,
permanent residents are entitled to full U.S.
the work is entitled to full U.S. copyright
copyright protection.
protection.
CHAPTER 12 | INTERNATIONAL COPYRIGHT PROTECTION | 329
EXAMPLE 2: Pierre, a French citizen, first
However, application of the rules
publishes his work in Vietnam. The work
described in the previous section, shows that
is entitled to U.S. copyright protection
a work by a citizen or permanent resident of
because Vietnam is a treaty country.
one of these outcast countries is protected
under U.S. copyright law if it is:
Unpublished works
• first published in the United States, or
• first published in a treaty country, or
All unpublished works are fully protected
• is unpublished.
The Copyright Handbook Page 57