Copyright is a creation of law in each country, and therefore there is no such thing as an international copyright law. Nevertheless, nearly 180 countries have ratified a treaty – the Berne Convention, administered by the World Intellectual Property Organization (WIPO) – that sets a minimum set of standards for the protection of the rights of the creators of copyrighted works around the world.
In addition, there have been efforts to harmonize copyright law in Europe and other regions. The differences in national copyright laws, however, can represent a challenge for global organizations with employees working in different countries and sharing content across boundaries.
One of the basic principles of the Berne Convention is that of “automatic protection”, which means that copyright protection exists automatically from the time a qualifying work is fixed in a tangible medium (such as paper, film or a silicon chip).
Neither publication, registration, nor other action is required to secure a copyright, although in some countries use of a copyright notice is recommended, and in a few countries (including the United States) registration of domestic works is required in order to sue for infringement.
There are a number of international treaties and conventions that provide protection for creative works that are the subject matter of copyright. Generally, those international agreements provide protection for copyrightable works once they are created (“fixed in a tangible medium of expression”). The Berne Convention for the Protection of Literary and Artistic Works is the most important international treaty that addresses international protection for copyright. The United States acceded to that treaty in 1989. With the accession of China in 1992 and the Russian Federation in 1995, almost all of the world’s most important countries now belong to the Berne Union. The Copyright Office publishes a listing of the countries that are parties to the Berne Convention, as well as other international copyright treaties like the Universal Copyright Convention.
The central feature of the Berne Convention is that it prohibits member countries from imposing “formalities” on copyright protection, in the sense that the enjoyment and exercise of copyright cannot be subject to any formality except in the country of origin. For over a hundred years, the United States resisted joining the Berne Union, in part because of the desire to maintain the formalities U.S. law required. In order to be eligible to join the Berne Union, Congress had to amend the Copyright Act to dispose of the many formalities the Act required. Therefore, while the United States Copyright Act can impose a requirement that the owner of a United States work must register the copyright with the Copyright Office before filing an infringement suit in federal court, it cannot impose that same obligation on foreign nationals. Likewise, foreign jurisdictions cannot impose similar formality requirements on U.S. copyright owners as a condition to filing suit in their national courts, even though they can impose those requirements on their own nationals.
The other main characteristics of the Berne Convention are the concepts of “minimum standards” and “national treatment.” “Minimum standards” are the baseline that all nations must provide to non-domestic claimants. The “national treatment” principle in copyright law states that authors should enjoy the same protection for their works in other countries as those countries accord their own authors. Therefore, a country that is a member of the Berne Union must afford copyright protection to foreign nationals without a requirement of any formalities (like use of a copyright notice or a registration requirement). Foreign nationals must be afforded the same rights and treatment that a domestic copyright holder would receive.
INTERNATIONAL COPYRIGHT TREATIES
Several international treaties encourage reasonably coherent protection of copyright from country to country. They set minimum standards of protection which each signatory country then implements within the bounds of its own copyright law.
Principles such as “national treatment” (works originating in one signatory country are given the same protection in the other signatory countries as each grants to works of its own nationals)
Principles such as “automatic protection” (copyright inheres automatically in a qualifying work upon its fixation in a tangible medium and without any required prior formality).
WIPO COPYRIGHT TREATY
- Signed in 1996
- Makes clear that computer programs and databases are protected by copyright
- Recognizes that the transmission of works over the Internet and similar networks is an exclusive right within the scope of copyright, originally held by the creator.
- Categorizes as copyright infringements both
- The circumvention of technological protection measures attached to works
- The removal from a work of embedded rights management information.
THE AGREEMENT ON TRADE RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS (TRIPS)
- Signed in 1996
- Signed in 1996
- Administered by the World Trade Organization
- Includes a number of provisions related to the enforcement of IP rights.
- Says that national laws have to make the effective enforcement of IP rights possible, and describes in detail how enforcement should be addressed.
DURATION OF COPYRIGHT
The duration of copyright may vary from country to country according to the type of work (and the particular right in question). Although Berne sets a minimum duration of a copyright in a literary work equal to the life of the author plus 50 years, in most cases and countries today, the general rule is that copyright in literary, dramatic, musical or artistic works lasts for the life of the author and then until 31 December of the year 70 years after his or her death (usually referred to as “life plus 70”).
In some countries, specific rules may apply that alter or add to the general rule of life plus 70 years (for example, granting extensions for the period of World War II). In addition, some countries had different copyright terms that were in effect before adoption of the general rule. For example, the United States did not adopt a “life plus” copyright duration until 1978. These differences in national laws imply the fact that in some cases a specific work can still be in copyright in some countries but out of copyright (that is, in the public domain) in others.
The public domain refers to works
(i) no longer protected by copyright (that is, where the copyright has expired)
(ii) belonging to categories of works not protected by copyright law.
In addition, in some countries (including the United States and, for certain purposes, the United Kingdom) government works are defined by law as being in the public domain (not protected by copyright) from the moment of their creation.
Thus, differences in how national copyright laws define the duration of copyright and list the categories of works protected, result in different definitions of the public domain on a country-by-country basis.
EXCEPTIONS AND LIMITATIONS
Exceptions and limitations to copyright are special cases defined by law where the general principle that the prior authorization of the rightsholder is necessary to make use of a work does not apply. That is, in the public interest of maintaining a balance between the interests of rightsholders and those of content users, copyright-protected works may in some cases be used without the authorization of the rightsholder.
Generally, exceptions and limitations to copyright are subject to a three-step test initially set out in the Berne Convention and repeated in a number of other international agreements. Briefly stated, the Berne Convention provides that an exception or limitation to copyright is permissible only if
(1) it covers only special case
(2) it does not conflict with the normal exploitation of the work
(3) it does not unreasonably prejudice the legitimate interests of the author.
Within that standard, exceptions and limitations vary substantially from country to country in number and scope, who is entitled to benefit from them, and whether or not they include an obligation to compensate the rightsholders whose rights are so limited.