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 Literary 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 dramaticomusical works and musical compositions; drawings and paintings; works of architecture, sculpture, engraving, and lithography; illustrations 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 motivating 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 nongovernment organization, the Association Littéraire 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 reciprocity (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 copyrighted 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 convention provides for automatic protection of copyrighted 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 conventions would have required U.S. publishers of foreign 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 materials, 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 different international treaty, the Universal Copyright 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-treatment principle, thus allowing U.S. authors to receive the same copyright protection in a specific 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 Convention 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 registration, deposit, and notice, and new provisions that extended the duration of copyright protection 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 protectionist 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 abiding 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 agreements concerning intellectual property, Congress 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 beginning in 1989, officially ending U.S. copyright isolationism.
Protection of Copyright in the Digital Age
Protection of the interests of copyright owners 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 individual web pages, and according to some estimates, 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.
The Question of Copyright. Among the originai powers granted to Congress by the U.S. Constitution was the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” In the century following ratification of the Constitution, hundreds of state and federal statutes defined and revised the terms and scope of copyright protection. By the late nineteenth century literary copyright ranked among the most hotly debated of legal issues. The question of international copyright—the rights of “alien” authors in America and American authors abroad—sparked controversy.
Legalized Piracy. Throughout the better part of the nineteenth century, no copyright provisions existed to protect foreign material. The legai loophole allowed American publishers to republish foreign fiction without paying royalties, so it was cheaper for American houses to publish works by foreign authors than to publish Americans’ works. In the 1880s a book by a popular American writer—Cooper or Hawthorne, Longfellow or Whitman, for example—cost a dollar or more, while popular British writers such as Dickens and Scott were available in pirated editions for a quarter. A similar condition in England worked to the disadvantage of Americans published there. Henry Wadsworth Longfellow complained that though he had twenty-two publishers in England and Scotland, only four even took the trouble to send him a copy of their editions of the works, and he received almost no royalties on foreign sales. Such piracy flourished in the magazine industry: eager to control production costs, editors gleefully raided British periodicals. When Americans discussed the issue of international copyright, they frequently framed the debate in terms of the common good. In 1868 one commentator reminded authors “that they have a nobler calling than the professional man or the mechanic; that their aim should not merely be to make money.” In opposing the free flow of literary goods, “they also oppose the progress of popular knowledge” Foremost among the American periodical pirates was Harper’s New Monthly Magazine, founded in 1850 as a digest of prepublished material. Harper’s Monthly declared its mission was to expose American readers to “an immense amount of useful and entertaining reading matter, to which, on account of the great number and expense of the books and periodicals in which it originally appears, they have hitherto had no access.” The editor of another American literary digest (first called The Pirate, later The Corsair) celebrated “the privilege assured us by our piratical law of copyright,” to “‘convey’ to our columns, for the amusement of our readers, the cream and spirit of everything that ventures to light in England, France, and Germany.”
A National Disgrace. Not ali members of the literary community, however, smiled on the practice of piracy. As the nineteenth century progressed, prominent American literati noted that other nations had successfully negotiated copyright agreements. Why not the United States and its foreign partners, most notably Great Britain? “It is a disgrace,” fumed the publisher George Haven Putnam, the American Champion of international copyright “that the two great English-speaking people, claiming to stand among the most enlightened of the community of nations, should be practically the only members of such community which have failed to arrive at an agreement in this all-important issue.” In an age of imperialism, the issue of international copyright became a matter of national pride. Yet American public opinion, Putnam noted with dismay, lagged behind “the standard of international justice already attained by Tunis, Liberia, and Hayti.”
A New Law. A series of bills designed to amend international copyright law languished in congressional committee during the 1860s, 1870s, and 1880s. By the end of this period, however, the tide had begun to turn. In 1888 Brander Matthews, professor of literature at Columbia University, remarked, “We now enjoy the privilege of piracy, as the dwellers on a rocky islet used to enjoy the privilege of wrecking—and we avail ourselves of this privilege only to the perdition of our own souls.” On 4 March 1891, the Senate voted its approval of the International Copyright Bill passed by the House of Representatives the previous December. Signed into law by President Benjamin Harrison, international copyright went into effect on 1 July of 1891. At long last, foreign authors were granted the protection of American copyright law—as, under reciprocal agreement, American authors gained the protection of foreign law.
George Haven Putnam, ed., The Question of Copyright (New York: Putnam, 1891);
Philip Wittenberg, The Protection and Marketing of Literary Property (New York: Julian Messner, 1937);
James Playsted Wood, Magazines in the United States, second edition (New York: Ronald Press Co., 1956).