How international copyright law works

Information Outlook, Jan, 2005 by Lesley Ellen Harris

If you photocopy an article in the U.S., you apply U.S. copyright law. If you photocopy an article in Canada, you apply Canadian copyright law. Similarly, if you photocopy an article in France, you apply French copyright law. That's the way international copyright law works: You apply the law of the country in which use of the work is made. This is called "national treatment" and is the underlying principle in the leading copyright convention, The Berne Copyright Convention ("Berne").

The Berne Copyright Convention

Berne is found at http://wipo.int. It is administered by the World Intellectual Property Organization ("WIPO"), and it is the oldest copyright convention, originally from 1886, subject to a number of versions. As of September 24, 2004, there are 157 countries that adhere to Berne, including the U.S., Canada, and all European Union countries.

Berne itself is not "the" international copyright law. In fact, there is no single document or legislation that constitutes international copyright law. Rather, it consists of a combination of domestic legal systems, regional and international regimes, and bilateral and multilateral treaties and agreements. Berne, like these other legal instruments, provides a minimum standard of copyright protection (allowing appropriate exceptions to copyright as well). Countries that adhere to Berne agree to include this minimum standard in their own domestic copyright statutes, and often go further than the minimum. By including this minimum standard, copyright owners are entitled to this protection in all member countries (as in our opening example), according to the copyright laws in that country.

This so-called international protection is automatic. If you are protected by copyright in your own country, then you are protected by copyright in the other 156 countries that adhere to Berne.

One of the requirements in Berne is that copyright protection is automatic. Once you create a work and it is fixed, it is automatically protected by copyright. That means that a country cannot insist on registration of copyright works in a national copyright office, or use of a copyright symbol. In fact, the U.S. did not join Berne until 1989 because until then copyright was not automatic in the U.S. Canada, for example, has always had automatic copyright protection.

Duration of Protection

Another requirement in Berne is that copyright protection lasts for a minimum of 50 years after the death of the author. Many Berne member countries have a duration of life-plus-50; however, in the past several years we have witnessed the U.S., EU countries, and others increase their duration to life-plus-70. So if you use a copyright-protected work in the U.S., you will have to clear the copyright in the work if the author has been not been dead for 70 years. However, if you use the same work in Canada, you may freely use the work if the author has been dead for 50 years.

Exceptions to Copyright

Berne allows for some exceptions to copyright law or uses that do not require permission from the copyright holder. Article 9(2) of Berne states, "It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author."

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Different countries have interpreted this wording quite differently. On one extreme is the U.S., where fair use uniquely exists and even allows for multiple copying of a copyright-protected work for classroom use as well as specific exceptions for libraries and archives and others. The other extreme is in the EU countries, which provide almost no free uses of copyright-protected materials. In the middle is Canada where there is a limited fair dealing provision that generally does not permit multiple copying and some very limited exceptions for libraries and archives and others.

Moral Rights

In addition to economic rights like reproduction and public performance of a copyright-protected work, Berne requires the protection of moral rights, which is the author's "right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation." This latter right is called the right of integrity.

Again, countries vary in how they interpret this requirement and include it in their domestic copyright law. In the U.S., moral rights are only for authors of a "work of visual art." This includes a painting, drawing, print, sculpture, or photograph, existing in a single copy or a limited edition of 200 signed and numbered copies or fewer. Moral rights are not transferable and only last while the author is alive. Authors may agree not to exercise their moral rights, or to waive them, but must do so in writing. At the other extreme, in EU countries, moral rights are for authors of all copyright-protected works, last in perpetuity, and may not be waived. A compromise position is in Canada, where moral rights are for authors of all works, they last for the same duration of copyright (life-plus-50), and they may be waived.