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TUCoPS :: Cyber Law :: claw4.txt

Copyright Law FAQ Part 4





Posted-By: auto-faq 2.4
Archive-name: Copyright-FAQ/part4

FREQUENTLY ASKED QUESTIONS ABOUT COPYRIGHT (V. 1.1.0)
Part 4 - International aspects.

Copyright 1993 Terry Carroll
(c) 1993 Terry Carroll


This article is the fourth in a series of six articles that 
contains frequently asked questions (FAQ) with answers relating to 
copyright law, particularly that of the United States.  It is 
posted to the usenet misc.legal, misc.legal.computing, and 
misc.int-property newsgroups monthly, on or near the 17th of each 
month.  The FAQ maintainer is currently investigating the 
requirements for posting the FAQ in the news.answers and related 
newsgroups.

The most current copy of the FAQ is always available for anonymous 
ftp from charon.amdahl.com [129.212.33.1], in the directory 
/pub/misc.legal/Copyright-FAQ, filenames part.1 - part.6.

If you do not have direct access to FTP, you can use the FTP mail 
service offered by the DEC Western Research Laboratory to obtain a 
copy by mail [note: I have been unable to get this to work - once 
the FAQ is set up for *.answers, it will be available for email 
transfer by way of the rtfm.mit.edu mail-server].  To do this, 
send an email message to ftpmail@decwrl.dec.com with the following 
commands in the body of your message:

   connect charon.amdahl.com
   get /pub/misc.legal/Copyright-FAQ/part.1
   get /pub/misc.legal/Copyright-FAQ/part.2
   get /pub/misc.legal/Copyright-FAQ/part.3
   get /pub/misc.legal/Copyright-FAQ/part.4
   get /pub/misc.legal/Copyright-FAQ/part.5
   get /pub/misc.legal/Copyright-FAQ/part.6
   quit

For further information on the FTPmail service, send an email 
message to ftpmail@decwrl.dec.com with a single command "help" in 
the body of your message.


DISCLAIMER - PLEASE READ.

This article is Copyright 1993 by Terry Carroll.  It may be freely 
redistributed in its entirety provided that this copyright notice 
is not removed.  It may not be sold for profit or incorporated in 
commercial documents without the written permission of the 
copyright holder.  Permission is expressly granted for this 
document to be made available for file transfer from installations 
offering unrestricted anonymous file transfer on the Internet.  
Permission is further granted for this document to be made 
available for file transfer in the Legal Forum and Desktop 
Publishing Forum data libraries of Compuserve Information 
Services.  This article is provided as is without any express or 
implied warranty.  Nothing in this article represents the views of 
Amdahl Corporation, Santa Clara University, or the Santa Clara 
Computer and High Technology Law Journal.

While all information in this article is believed to be correct at 
the time of writing, this article is for educational purposes only 
and does not purport to provide legal advice.  If you require 
legal advice, you should consult with a legal practitioner 
licensed to practice in your jurisdiction.

Terry Carroll, the FAQ-maintainer, is a computer professional, and 
is currently (7/93) a student in his final year at Santa Clara 
University School of Law and Editor-in-Chief of the Santa Clara 
Computer and High Technology Law Journal.

If you have any additions, corrections, or suggestions for 
improvement to this FAQ, please send them to one of the following 
addresses, in order of preference:

  tjc50@juts.ccc.amdahl.com
  tcarroll@scuacc.scu.edu
  71550.133@compuserve.com

I will accept suggestions for questions to be added to the FAQ, 
but please be aware that I will be more receptive to questions 
that are accompanied by answers.  :-)


FAQ ORGANIZATION.

The following table indicates the contents of each of the parts of 
the FAQ.

  Part 1 - Introduction (including full table of contents).
  Part 2 - Copyright basics.
  Part 3 - Common miscellaneous questions.
  Part 4 - International aspects.
  Part 5 - Further copyright resources.
  Part 6 - Appendix: A note about legal citation form, or, "What's
           all this '17 U.S.C. 107' and '977 F.2d 1510' stuff?"

TABLE OF CONTENTS (for this part).

Part 4 - International aspects.

4.1) What international treaties exist governing copyright, or
     "What is this Berne Convention I keep hearing about?"
4.2) Is Freedonia a signatory to either the Berne Convention or to
     the Universal Copyright Convention?


4.1) What international treaties exist governing copyright, or 
"What is this Berne Convention I keep hearing about?"

The two major treaties governing copyright are the Berne 
Convention (U.S. Senate Treaty Doc. 99-27, KAV 2245, 1 B.D.I.E.L. 
715; also reprinted at 17 U.S.C.A. 104). and the Universal 
Copyright Convention (U.C.C.), (25 U.S.T. 1341, T.I.A.S. 7868, 1 
B.D.I.E.L. 813 (1971 Paris text); and 6 U.S.T. 2731, T.I.A.S. 
3324, 216 U.N.T.S. 132 (1952 Geneva text)).  (Note: the 
abbreviation U.C.C. to denote the Universal Copyright Convention 
should not be confused with the same abbreviation to denote the 
Uniform Commercial Code.)

The Berne Convention for the Protection of Literary and Artistic 
Works was established in 1886 in Berne, Switzerland.  The text has 
been revised, and the current edition (and the one to which the 
United States and most other nations are a signatory) is the 1971 
Paris text.  The treaty is administered by the World Intellectual 
Property Organization (WIPO), an international organization 
headquartered in Geneva, Switzerland.

The Berne Convention has four main points:  National treatment, 
preclusion of formalities, minimum terms of protection, and 
minimum exclusive rights.

National treatment: Under Berne, an author's rights are respected 
in another country as though the author were a national (citizen) 
of that country (Art. 5(1)).  For example, works by U.S. authors 
are protected by French copyright in France, and vice versa, 
because both the U.S. and France are signatories to Berne.

Preclusion of formalities: Under Berne, copyright cannot be 
dependent on formalities such as registration or copyright notice 
(Art. 5(2)).  However, as noted in sections 2.5 and 2.7, this 
provision apparently does not prevent a member nation from taking 
adherence to formalities into account when determining what 
remedies apply.

Minimum terms of protection:  Under Berne, the minimum duration 
for copyright protection is the life of the author plus 50 years 
(Art. 7(1)).  Signatory nations may have provide longer durations 
if they so choose.

Minimum exclusive rights: Under Berne, a nation must provide for 
protection of six rights: translation (Art. 8(1)), reproduction 
(Art. 9(1)), public performance (Art. 11(1), and Art. 11ter), 
adaptation (Art. 12), paternity (Art. 6bis(1)) and integrity (Art. 
6bis(1)).  In certain of these areas, U.S. copyright law does not 
quite align with Berne.  For example, Berne requires that the 
paternity and integrity rights endure for the same term as the 
other rights (Art. 6bis(2)), while in the U.S., those rights 
terminate at the death of the author (17 U.S.C. 106A(e)).  The two 
have been reconciled by the premise that other sources of federal 
law, such as trademark, combined with the trademark, unfair 
competition, and defamation laws of the individual states, satisfy 
these requirements.

The Universal Copyright Convention was originally written in 1952 
in Geneva.  It became effective in 1955.  Like the Berne 
Convention, the text has been revised.  As with the Berne 
Convention, the most recent revision was in Paris in 1971.  The 
United States is party to both the 1952 Geneva text and the 1971 
Paris text.  The U.C.C. is administered by UNESCO, a United 
Nations agency.

Like Berne, the UCC requires national treatment for authors.  
However, the UCC differs from Berne in four material ways.  First, 
the UCC permits (but does not require) member states to require 
formalities such as copyright notice and registration as a 
condition of copyright (Art. III).  Second, copyright duration 
must be until least 25 years after the author's death or after the 
first publication, depending on whether a nation calculates 
duration based on the author's life or on publication (Art. IV).  
Third, the UCC's provisions on minimum rights are considerably 
less demanding than Berne's; the UCC demands recognition only of 
the rights to reproduce, adapt, and to publicly perform or 
broadcast the work.  Furthermore, the UCC expressly permits a 
nation to make exceptions to these rights, as long as the 
exceptions do not conflict with the spirit of the treaty (Art. 
IVbis).  Fourth and finally, the UCC recognizes the Berne 
Convention, and includes language so that, between two nations 
which are signatories to both Berne and the UCC, the Berne 
Convention controls and the UCC does not apply.  Furthermore, if a 
nation is a signatory to both conventions, and withdraws from 
Berne, it will not be protected by the UCC (Art. XVII and 
Appendix).  These provisions were added by nations fearing that 
creation of the UCC in 1955 would undermine the already existing 
Berne Convention.

The United States was the primary mover behind the creation of the 
U.C.C., because the formalities that existed in U.S. copyright law 
at that time did not permit adherence to Berne.  With the U.S. 
joining Berne, and consequently abandoning the formalities that 
were the driving force behind the U.C.C., the significance of the 
U.C.C. is waning.

In addition to Berne and the UCC, other copyright treaties include 
the 1971 Geneva Convention for the Protection of Producers of 
Phonograms Against Unauthorized Duplication of Their Phonograms 
(25 U.S.T. 309, T.I.A.S. 7808, 888 U.N.T.S. 67), the 1984 Brussels 
Convention Relating to the Distribution of Programme-Carrying 
Signals Transmitted by Satellite (T.I.A.S. 11078), and the 1911 
Buenos Aires Convention on Literary and Artistic Copyrights (38 
Stat. 1785, T.S. 593, 1 Bevans 758), which regulated copyright in 
the Americas.  The U.S. did not sign the Buenos Aires Convention 
when it was revised in 1948, and all of its signatories are now 
also signatories to either or both of Berne or the UCC.  The 
Buenos Aires Convention is now essentially a dead letter in 
international copyright law.

The texts of both versions of the U.C.C., the Buenos Aires 
Convention, and the Geneva Convention, are in Circular 38c, 
"International Copyright Conventions," available from the 
Copyright Office (see section 5.1).  Texts of the Berne Convention 
and the U.C.C. are available by anonymous FTP from the 
Multilaterals Project (see section 5.2).


4.2) Is Freedonia a signatory to either the Berne Convention or to 
the Universal Copyright Convention?

The answer in section 4.1 is generally almost always followed by a 
query as to whether a specific country has signed one or more of 
the conventions, so the following lists provide that information.

This data comes from the January 1992 edition (the most current) 
of Treaties In Force, with some supplemental information as noted.  
Each list indicates only that the nations listed have signed the 
convention.  It does not indicate whether a particular nation has 
also signed one or more of the optional protocols associated with 
the convention.  For example, Protocol 1 of the U.C.C. establishes 
that stateless persons are to be considered nationals of the 
nation within which they reside for purposes of the convention; a 
number of nations have signed the U.C.C., but have not signed that 
protocol.  If you really want to get down to that level of detail, 
consult a current edition of Treaties In Force.

If you're interested in knowing more detail about what copyright 
treaties are in effect between the U.S. and a particular nation, 
there is a table in the back of Treaties In Force containing an 
alphabetical list of countries, listing the copyright treaties 
(both unilateral and multilateral) to which it is a party with the 
U.S., including the dates on which each treaty entered into force.  
This table is also reproduced in the Copyright Office's Circular 
38a, "International Copyright Relations of the United States," 
contains  You can order it from the Copyright Office (see section 
5.1).  This circular is also included in Copyright Office 
information kit 100.  A similar table is included as an appendix 
in the Nimmer treatise (see section 5.1).

Note that, while the U.S.S.R. is listed as a signatory to the 1952 
Geneva text of the U.C.C., the status of the former soviet states 
is unclear at this time.  I've been told that Russia and some of 
the other newly independent states have announced that they will 
honor nearly all of the treaties of the former Soviet Union.  
Other states, for example, Estonia, Latvia, and Lithuania, take 
the position that they were never legally part of the Soviet 
Union, and that treaties entered into by the Soviet Union are 
totally irrelevant to their international obligations.

In addition, I've been cited to an article entitled "Post-Soviet 
Law: The Case of Intellectual Property Law," by Peter Maggs (an 
attorney and professor at University of Illinois at Urbana-
Champaign) in the Harriman Institute Forum, Vol. 5, No. 3 (Nov. 
1991), pp. 3-9.  Professor Maggs reportedly concludes that, under 
international law, all newly independent states that were 
previously legitimate parts of the USSR (i.e., all except Estonia, 
Latvia, and Lithuania), remain bound by the UCC, although whether 
they actually have functional copyright protection is another 
matter altogether.

Thank you to <marlen@sovam.com> for contacting Professor Maggs and 
providing me with most of the information in the preceding two 
paragraphs.

In addition, in May 1993, the TASS news agency reported that 
Russia has enacted a new copyright law that is Berne-compliant, in 
preparation for an anticipated signing of the Berne Convention.

The following nations are signatories to the Berne Convention 
(1971 Paris text):  Argentina, Australia, Austria, the Bahamas, 
Barbados, Belgium, Benin (formerly Dahomey), Brazil, Bulgaria, 
Burkina Faso (formerly Upper Volta), Cameroon, Canada, the Central 
African Republic, Chad, Chile, Colombia, Congo, Costa Rica, Cote 
d'Ivoire (Ivory Coast), Cyprus, Czechoslovakia, Denmark, Ecuador, 
Egypt, Fiji, Finland, France, Gabon, Germany, Ghana, Greece, 
Guinea, Holy See (Vatican City), Honduras, Hungary, Iceland, 
India, Ireland, Israel, Italy, Japan, Lebanon, Lesotho, Liberia, 
Libya, Liechtenstein, Luxembourg, Madagascar (Malagasy Republic), 
Malawi, Malaysia, Mali, Malta, Mauritania, Mauritius, Mexico, 
Monaco, Morocco, the Netherlands, New Zealand, Niger, Norway, 
Pakistan, Peru, Philippines, Poland, Portugal, Romania, Rwanda, 
Senegal, South Africa, Spain, Sri Lanka (formerly Ceylon), 
Suriname, Sweden, Switzerland, Thailand, Togo, Trinidad and 
Tobago, Tunisia, Turkey, the United Kingdom, the United States, 
Uruguay, Venezuela, Yugoslavia, Zaire, and Zimbabwe.  According to 
U.S. State Department Dispatches published since January 1992, 
additional nations to sign Berne include Gambia (Dec. 12, 1992), 
China (July 10, 1992) and Kenya (March 11, 1993).

The following nations are signatories to the Universal Copyright 
Convention (1971 Paris text):  Algeria, Australia, Austria, the 
Bahamas, Bangladesh, Barbados, Bolivia, Brazil, Bulgaria, 
Cameroon, Colombia, Costa Rica, Cyprus, Czechoslovakia, Denmark, 
the Dominican Republic, Ecuador, El Salvador, France, Germany, 
Grenada, Guinea, Hungary, Italy, Japan, Kenya, Korea, Mexico, 
Monaco, Morocco, the Netherlands, Norway, Panama, Poland, 
Portugal, St. Lucia, St, Vincent and the Grenadines, Senegal, 
Seychelles, Spain, Sri Lanka (formerly Ceylon), Sweden, Trinidad 
and Tobago, the United Kingdom, the United States, Vatican City, 
and Yugoslavia.

The following nations are signatories to the Universal Copyright 
Convention (1952 Geneva text):  Algeria, Andorra, Argentina, 
Australia, Austria, the Bahamas, Bangladesh, Barbados, Belgium, 
Belize, Bolivia, Brazil, Bulgaria, Cambodia, Cameroon, Canada, 
Chile, Colombia, Costa Rica, Cuba, Cyprus, Czechoslovakia, 
Denmark, the Dominican Republic, Ecuador, El Salvador, Fiji, 
Finland, France, Germany, Ghana, Greece, Grenada, Guatemala, 
Guinea, Guyana, Haiti, Holy See, Hungary, Iceland, India, Ireland, 
Israel, Italy, Japan, Kenya, Korea, Laos, Lebanon, Liberia, 
Liechtenstein, Luxembourg, Malawi, Malta, Mauritius, Mexico, 
Monaco, Morocco, the Netherlands, New Zealand, Nicaragua, Nigeria, 
Norway, Pakistan, Panama, Paraguay, Peru, Poland, Portugal, St. 
Lucia, St, Vincent and the Grenadines, Senegal, Seychelles, Spain, 
Sri Lanka (formerly Ceylon), Sweden, Switzerland, Tunisia, the 
Union of the Soviet Socialist Republics, the United Kingdom, the 
United States, Venezuela, Yugoslavia, and Zambia.



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