Copyright Clearance, Protection and Enforcement Outside of the United States

Comments are generalizations and may not apply to every situation. It is advisable to consult with a competent professional before relying on any written commentary. Paul D. Supnik is a member of the State Bar of California and not of any other state or country. The material set forth herein is not for the purpose of soliciting any engagements where to do so would be to offend or violate the professional standards of any other state, country or bar.

Copyright 1996 by Paul D. Supnik

  1. For most countries, copyright requires no formality to become effective.
  2. Most countries do not require any copyright notice. However, one treaty, the Universal Copyright Convention provided protection for works published with a three part copyright notice, the ©, the name of the copyright proprietor and the year of first publication. The importance of this treaty is now reduced, but not eliminated as a result of the United States joining the Berne convention.
  3. Works which are in the public domain in the United States may not be in the public domain outside of the United States. And works which may have been in the public domain may no longer be in the public domain as a result of copyright restoration.
  4. The United States is a party to various copyright treaties which provide a method for enforcing copyright of United States origin abroad. The Berne convention provides that its members must recognize copyright in member countries as they do for nationals of their country, without formalities. Thus, member countries may not require as a condition of copyright, that the work be registered or that the work bear a copyright notice. However, the United States was the countries that had imposed those requirements in recent years prior to the adherence to Berne.
  5. The Berne convention may mean different things in different countries, depending upon which version of the Berne treaty was signed and whether the country made any reservations to adherence. In some countries the treaty is self executing, thus not needing any additional legislation, while in other countries implementing legislation is required according to the constitutions of the particular country. (The United States enacted implementing legislation when it joined.)
  6. Berne provides for minimum standards of copyright protection.
  7. In order to determine the duration of copyright in a country outside of the United States, one must determine the particular country in which the work is to be enforced, the country of origin of the work, and whether the work is still protected in the country of origin. Some countries adhere to the "rule of the shorter term" in which works are not protected for a longer term than protection is granted in their country of origin.
  8. Generally, contract law and ownership rights are governed by the laws of the country of origin of the work, while laws relating to copyright enforcement are governed by the law of the country of enforcement. Conflicts of laws among different countries exist.  Some of those differences may become more marked by the differences in laws between common law and civil law jurisdictions.  It is not necessarily easy to determine which law will be applied by a particular country in enforcement of copyrights.
  9. Copyright under civil law countries tend to focus much more significantly on noneconomic rights associated with copyright, and copyright is more likely to be referred to as "authors rights" or "droit d'auteur." Author's rights encompass both economic rights and "moral rights". In France, moral rights are tied to the cultural heritage of the country and played a role in the French Revolution. France is considered to be the country that pays the greatest attention to moral rights. There, moral rights are said to be inalienable, inheritable and in perpetuity. In other countries, moral rights may be assigned away in various degrees, and may be conterminous with economic rights of author's.
  10. Moral rights generally include the right of paternity and the right of integrity. The right of paternity means the right to have one's name associated as the author of a work. The right of integrity means the right to make sure that the work maintains its artistic integrity and thus is not changed in a way which maligns the work or its author. Other moral rights exist to one degree or another in various countries, which include the right to determine the first publication of a work, and in limited circumstances, accompanied by compensation to the exploiting party, the right to have a work removed from circulation.
  11. Moral rights are required in Article 6 bis of the Berne Convention. The moral rights are said to extend even after the transfer of copyright during the autohr's lifetime and exercisable after death during the term of copyright.
  12. Works of foreign origin which went into the public domain in the United States may have been restored in the United States if the reason for falling into the public domain was based on the failure to publish with a copyright notice, or the failure to renew a copyright registration, and in certain other highly limited circumstances.
  13. Most countries in the world do not have copyright offices comparable to the United States. However, many countries do have various registration requirements, not necessarily for copyright, but as a requirement for distribution of the work in the country. In addition, some particular industries have their own private registration schemes. Some of the same benefits of registration are provided by various presumptions in courts outside of the United States. In some situations, United States registration, though not formally available as proof, may be helpful to establish some of the same presumptions though some countries may not recognize the presumptions which are commonly used in some countries to prove copyright ownership.
  14. It may be difficult to enforce copyright in some countries, not because the countries do not have copyright laws, but because the procedures in inherent in obtaining relief as a practical matter make it highly unlikely to obtain the relief sought. In other situations, the remedies available are either not available, or not likely to be enforceable. The United States, a significant exporter of intellectual property rights, has aggressively sought to obtain copyright enforcement throughout the world to protect its substantial interests in the copyright arena.

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