Protecting government works: the copyright issue - Tutorial

Acquisition Review Quarterly, Wntr, 2002 by Paul C. Manz, Michael J. Zelenka, Raymond S. Wittig, Sally A. Smith

In the United States, the Court in Bridgeman Art Library, Ltd. v. Corel Corp., 36 F.Supp.2d 191 (SDNY 1999), examined issues of whether a signatory nation in which enforcement is sought must enforce a foreign copyright, even if that copyright would not be valid under its own law. The Court found that the fundamental issue was "whether the United States courts may give effect to any provision of the Conventions which might require or suggest that the existence of copyright be determined under the law of another nation." (26) The Court ruled that the Berne Convention is not self-executing and that under 17 U.S.C. [section] 104(c), "no right or interest in a work eligible for protection under this title may be claimed by virtue of, or in reliance upon, the provisions of the Berne Convention or the adherence of the United States thereto." (27) Thus, while the Copyright Act extends certain protection to the holders of copyright in Berne Convention works as there defined, the Copyright Act is the exclusive source of that protection. (28) Therefore, where a foreign work was found not to be original under section 102(a) of the Copyright Act, protection under the Act was not awarded.

In other words, the Berne Convention on copyrights did not require United States courts to enforce copyrights of other countries where those copyrights did not satisfy the originality requirement for copyrights set forth in the United States Constitution. The Berne Convention provided that signatories were to provide foreign copyrights with same protection available to domestic copyrights, and in ratifying the Convention, Congress provided for its enforcement through the Copyright Act. (29)

This case illustrates that the United States' courts recognize (1) the equal treatment accorded to foreign copyrights under the Berne Convention and (2) that in order to enforce the rights under a foreign copyright, a foreign owner must comply with the United States Copyright Act. For example: a U.S. publisher discovers that bootleg copies of his book are being sold in England. Because the United Kingdom is a member of the Berne Convention and the Universal Copyright Convention (UCC), the U.S. publisher's work is automatically protected by copyright in England. When the U.S. publisher files a copyright infringement action in England against the bootlegger, that publisher receives the same rights as an English copyright owner has. The rights relating to enforcement are based on the law of the country of enforcement. (30)

It is the authors' position that U.S. authors automatically receive copyright protection in all countries that are parties to the Berne Convention, to the extent that the foreign country, considers the material to be protected and eligible for copyright. But the work to be protected must be eligible for copyright in the country where enforcement is sought.

Section 105 of Title 17 of the Copyright Act makes copyright protection unavailable, inside the borders of the United States (see "The Prohibition Against the Copyrighting of Federal Employee Works"), for "works of the United States Government" as defined in the Act. If another signatory to the Berne Convention, however, allows copyright protection of its government works (i.e., Crown Copyright of the United Kingdom (31) or Canadian Copyright Act (32), it is clear that that country's courts must afford protection to similar works of the U.S. Government, despite the fact that the work could not be protected in the United States. Congressional legislative history supports this position. The Notes on 17 U.S.C. [section] 105 states: