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
For most countries, copyright requires no formality to become effective.
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.
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.
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.
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.)
Berne provides for minimum standards of copyright protection.
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.
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.
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.
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.
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.
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.
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.
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.
Links to other web sites provided as a convenience. No
responsibility is assumed for the content of web sites referenced. Their
inclusion does not necessarily constitute an endorsement of the linked
cite, nor does the inclusion here of a reference to a web cite or a link
to a webcite represent an endorsement by web cite referenced or its sponsors.
Comments are generalizations and may not apply to every situation. Matter
included here or in linked websites may not be current. It is advisable
to consult with a competent professional before relying on any written
commentary. No attorney client relationship is established by the viewing,
use, or communication in any manner through this web site. Confidential
information should not be sent by e-mail or otherwise through the internet.
It may not be secure, may lose its confidential character and may lose
its ability to be protected by the attorney-client privilege. 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. This web site Copyright 1996
by Paul D. Supnik
Disclaimer--please read first | ©1996
Paul D. Supnik