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    Copyright’s International Conventions: The Importance of Membership-Part 1 (The United States and the Berne Convention)

    • 12.07.2022
    • By Hugh Stephens
    Hugh Stephens Blogs

    Back in the first half of the 19th century, despite reasonably robust national copyright laws (for the era), protecting author’s rights was still a major problem. Works protected in one country were not protected elsewhere, leading to “legalized piracy”. The best-known example of this is the legal reprinting, without permission, of British authors (such as the works of Charles Dickens) in the United States. This was legal because US copyright law protected only US authors prior to 1891. But this “legalized piracy” didn’t occur just in the United States. The practice was common and widespread. Belgian printers reproduced French works without authorization; French publishers reproduced British works, and on occasion British publishers reproduced works by American authors, such as Edgar Allen Poe, and so on.

    At first countries tried to deal with the problem through bilateral treaties whereby each state would respect the copyrights of the other, but this hodge-podge of bilateral agreements failed to solve the problem. A large international conference was held in Brussels in 1858 with representatives from governments, libraries, literary and scientific associations, individual authors, artists and legal practitioners, booksellers, publishers, and printers. Nothing was resolved but the groundwork was laid for what eventually became the granddaddy of all international copyright treaties, the Berne Convention of 1886. The French novelist Victor Hugo played a leading role in pushing for an international agreement and finally, on September 9, 1886, ten countries signed the first international convention on copyright (Belgium, France, Germany, Great Britain, Haiti, Italy, Liberia, Spain, Switzerland, Tunisia).

    That is an interesting group of countries for a 19th century treaty, and one wonders what drove the interest of Haiti, Liberia and Tunisia, not known to have major publishing businesses. In any event, neither Haiti nor Liberia ratified the treaty, leaving just eight initial founding members. There must have been a serious case of buyer’s remorse since neither Haiti nor Liberia joined the Convention until more than a century later, in 1989 in the case of Liberia and 1996 in the case of Haiti. These two countries weren’t the only latecomers to the treaty, which has been modified and updated several times over the years, most recently in 1971. The United States, for one, did not join until 1989. Why was the US a holdout?

    The biggest obstacle facing United States accession to Berne was the incompatibility of US law with one of the basic tenets of the Berne Convention; that copyright exists from the moment a work is created (provided it meets other basic criteria) without any need for registration or notice. US law required formal registration as well as application of the © notice. Also, US law at the time did not cover all creative works as required by Berne, did not protect moral rights, and limited the term of protection to less than the Berne standard. An excellent discussion of the reasons why the US stayed out of Berne is presented by Jonathan Bailey in his blog Plagiarism Today. (“Why Did the United States Wait 103 Years to Join the Berne Convention”?). Bailey concludes that;

    The United States didn’t join the Berne Convention because its copyright was inherently incompatible with the convention, and it didn’t have enough motivation to overhaul its laws to bring it into complianceHowever, technology changes made that approach untenableThe United States didn’t change its mind and join the Berne Convention, it was forced to by a practical reality and its method of compliance is proof of that.

    The takeaway is that while accession may require some changes to domestic law, absence from agreements that offer creators international copyright protection can be costly for national interests, especially as copyright and technology evolve. Nations need to ensure that their international instruments and level of protection are current and fit for purpose in the modern age.

    During the many years that the US was unwilling to join Berne, it looked for work-arounds to achieve similar objectives. One means was to develop and accede to other conventions that would help protect American copyrights abroad without the need to change US law. As a result, the US signed the Buenos Aires Convention of 1910 which brought the United States and many Latin American states into a mutual recognition copyright regime that was consistent with US law. In 1952 the US became a founding member of the Universal Copyright Convention (UCC), an international agreement that mirrored Berne in many ways but allowed the US to keep its legal requirements. But the world was moving on.

    By the time the US eventually joined Berne in 1989, the Convention had 120 member states. Today, the total is 180 out of the 195 (more or less) sovereign states that exist today. Furthermore, when the World Trade Organization came into existence in 1995, the TRIPS Agreement (part of the WTO package) incorporated the principal elements of Berne. Therefore, any country joining the WTO agrees to implement the terms of Berne. Of the few states that do not belong to Berne, almost all (such as Taiwan, which cannot sign Berne for political reasons, and a few others) are members of TRIPS. After the US and Russia joined Berne (Russia in 1994), the UCC became increasingly irrelevant and with the accession of Cambodia (the last country to be a UCC member but not a member of the Berne Convention) to Berne in December 2021, the UCC in has in effect become obsolete.

    While membership in international conventions comes with obligations, it also brings rewards. For example, since the US joined Berne, US publishers no longer needed to resort to what was called the “back door to Berne”, whereby many US publishers first published in Canada (a Berne Convention country) in order to obtain the benefits of Berne-standard copyright protection in Convention countries.

    Interestingly, the back door to Berne may not be entirely closed, even today. That is because when the US joined Berne, it did not adopt, holus-bolus, the Berne requirement that copyright is established automatically, without registration (assuming other conditions are met). The US accepted automatic copyright but retained the registration requirement for cases where rights-holders wish to pursue an infringement action (Section 411 of the US Copyright Act).  However, Section 411 registration applies only to “US works”, so that a rights-holder of a non-US work (even though a US resident or citizen) can bring an infringement action in the US without have to go through the registration process. This potentially provides some advantages since there is no risk of registration being denied, which can happen if not done properly, and there is no need to wait for completion of registration, which can take over a year in certain circumstances, before launching infringement action. As a result of this situation, in which non-US works get “better than national treatment”, it has been suggested that it may be in the interests of a US rights-holder to first publish a work outside the United States, thus avoiding the need for US registration yet still being able to enforce copyright. The work would have to either be published first outside the US but in another Berne Convention country, or, if published simultaneously in the US and another Berne Convention country, that state would have to offer a term of copyright protection shorter than that offered in the US.

    One has to ask oneself why a rights-holder, if concerned about possible infringement, would go to all that trouble to ensure registration as a non-US work when they could simply register the work with the US Copyright Office early in the process? Still, the differential (i.e. more advantageous) treatment of non-US works is one of the quirks of the US accession to Berne and illustrates the complexity when international agreements collide with domestic law.

    In Jonathan Bailey’s view, the US should eliminate these quirks and harmonize its copyright requirements with those of other Berne Convention members. (This would presumably also include expanding moral rights in the US). Bailey says;

    The United States is still very much a nation that wants to enjoy the benefits of the Berne Convention but is wanting to keep its quirks and oddities, no matter how much they harm local creators…Even today, the United States is dragging its feet on these issues, refusing to ditch antiquated and harmful approaches to copyright, even as the rest of the world moves forward.”

    But maybe the important thing is that the US eventually got to “yes”, regardless of the tweaks and compromises that were necessary to get the legislation through Congress. US accession to Berne opened the floodgates, and many other states joined subsequently.

    US law had evolved over the years making it easier for the United States to accept Berne’s conditions. Moreover, the US saw advantages for its own creative industries if it acceded and so the necessary compromises were made, allowing the US to become a Berne Convention member. Just as with any international agreement, some concessions were granted, some changes were made to domestic law and some limitations on sovereignty were accepted, all in order to obtain stronger protection for national copyright interests abroad. Any minor “pain” was worth the substantial “gain”.

    At the end of the day, that is the bottom line. And that is the reason why copyright’s international conventions are so important to creators around the world, regardless of nationality.

    This article was first published on Hugh Stephens Blog