Global Context of Copyright Law

     Those handling copyright matters for a college or university do well to become familiar with the application of copyright law across borders.  Faculty may find themselves collaborating with foreign nationals on research, writing, or even teaching.   There is no single international body of law that governs all situations (U.S. Copyright Office, 2014).   The sources of law in a global context are international conventions and bilateral treaties.  International conventions are multilateral treaties among several countries whereas bilateral treaties are between two countries.  In either case, the treaty needs to have been ratified by the U.S. Senate to become valid.    

     This blog post identifies some of the more important copyright conventions adopted by the United States.  Then, using Australia as an example, it will examine Australian copyright law and how works by U.S. authors are protected in that country.   The treaties identified here remain in force, but the earlier ones have been largely replaced by the later treaties entered into by most of the same parties.  A key concept in most copyright conventions is “national treatment”, the promise that a country will extend to the copyrighted works of member countries the same protections given to domestic copyrighted works.

Convention on Literary and Artistic Copyrights, Aug. 11, 1910, 38 Stat. 1785, TS 593.  Known as the Buenos Aires Convention of 1910, this agreement among the United States and several Latin American Countries provided that member countries would recognize each other's copyrighted works provided these works carried a notice stating "all rights reserved" or a similar statement.  

Universal Copyright Convention, July 24, 1971, 25 UST 1341, TIAS 7868.  Member countries agreed to extend national treatment to each other's copyrighted works provided the work bears the symbol for copyright "©", followed by the date of first publication, and the name of the copyright owner. 

Berne Convention (with appendix) for the Protection of Literary and Artistic Works, July 24, 1971, 102 Stat. 2853, 828 UNTS 221.  Under the Berne Convention, member countries accord national treatment to copyrighted works from fellow member countries.  The Berne Convention requires neither notice nor markings such as the copyright symbol to extend copyright protection to a work.  It requires that member countries extend protection to works from other member countries for the lifetime of the author plus 50 years. 

WIPO Copyright Treaty, December 20, 1996, 36 I.L.M. 65, U.S. Senate Treaty 105-17.  Managed by the United Nation's World Intellectual Property Organization (WIPO), the WIPO Copyright Treaty extended national treatment by member nations to digital works such as computer programs and original compilations of data and sound recordings.  It also required that member countries enact legal protections and remedies against the circumvention of technologies designed to protect against unauthorized copying.  This prompted the enactment in the United States of the Digital Millennium Copyright Act codified at 17 U.S.C. §§ 1201-1204.  The WIPO Copyright Treaty was passed with a companion treaty, WIPO Performances and Phonograms Treaty, which extends to performance and production rights in a digital environment.  

 

U.S. Copyright Relations with Australia

     In examining cross-border copyright protection, whether it involves the rights of foreign nationals in the United States or the protection of works by United States citizens abroad, one will want to examine whether the foreign country is a member to a copyright convention with the U.S.  It is also important to determine whether the United States has a bilateral treaty with that country.  U.S. Copyright Office Circular 38A provides a convenient guide to copyright agreements in place between the United States and other countries (U.S. Copyright Office, 2014).  The State Department’s Treaties in Force provides a comprehensive listing of conventions and treaties the United States is a party to with other countries on all subject areas (U.S. State Department, 2013).

     U.S. Circular 38A lists Australia as a party to the following agreements conventions and treaties: Bilateral treaty with the United States, March 15, 1918, the Berne Convention (Paris), the Universal Copyright Convention (Geneva), Phonograms, the World Trade Organization Treaty, the WIPO Copyright Treaty, and the WIPO Performances and Phonograms Treaty.  In addition to being a party to these treaties and conventions, Australia entered into an Agreement on the Establishment of a Free Trade Area with the United States, which became effective January 1, 2005 and which further developed bilateral copyright relations between the two countries.  Based on these agreements, both Australia and the United States extend national treatment to each other’s copyright protected works.  National treatment, under Australian law would be those rights secured under the Copyright Act (Copyright Act, 1968).

     The Copyright Act is more prescriptive than United States copyright law.  It secures rights of copyright holders and identifies specific exceptions.  Rather than providing a general fair use exemption, sections 40 through 42 of the Copyright Act provide "fair dealing" provisions allowing exemptions for purposes of research and study; review and criticism; reporting the news; legal advice; and parody and satire, all of which are specific and limited.  The law provides for a system of statutory license collecting societies, which are authorized to operate a centralized rights management system that facilitates the collection of royalties (Alexander & Fraser, 2014).

      As part of an effort to make Copyright Act easier to understand, more concise, more adaptable changing technologies, and more in line with the global copyright environment, the Australian Law Reform Commission completed an extensive study of copyright law practice in Australia in 2014 and prepared ALRC Report 122 recommending several reforms for consideration by the Australian Government (George, 2014).  The most controversial component of the recommended reform is a provision that would replace the Copyright Act’s fair dealing provisions with a broader fair use exception tracking that codified in the U.S. Copyright Act of 1976 (17 U.S.C. §107).  The Australian fair use provision, if adopted, would evaluate the nature and purpose of the use; the nature of the copyright material; the amount and substantiality of the part used; and the effect of the use on the market (Alexander & Fraser, 2014). 

      Even though United States and Australian copyright laws differ in several details, American copyright holders can expect to receive national treatment in Australia, which translates into many of the basic protections offered by United States copyright law.  Additionally, reforms under consideration in Australia may well result in even greater similarities.   

 

 

References

Alexander, I., & Fraser, M. (2014). Copyright reform in Australia: Asking the right questions. Journal of Media Law, 6(1), 8-20.

 

Australian Law Reform Commission. (2014). Copyright and the digital economy (ALRC Report 122). Sydney, Australia: Commonwealth of Australia. Retrieved from http://www.alrc.gov.au/publications/copyright-report-122

 

Copyright Act 1968 (Cth) (Austl.). Retrieved from http://www.comlaw.gov.au/Details/C2014C00291

 

George, A. (2014). Reforming Australia’s copyright law: An opportunity to address the issues of authorship and originality. University of New South Wales Law Journal, 37(3), 939–971.

 

Schwabach, A. (2007). Intellectual property: a reference handbook. Santa Barbara, Calif: ABC-CLIO, Inc.

 

U.S. Copyright Office (2014) International copyright relations of the United States (Circular 38A). Washington, D.C.: U.S. Copyright Office. Retrieved from http://www.copyright.gov/circs/circ38a.pdf

 

U.S. Department of State (2013) Treaties In Force: A List of Treaties and Other International Agreements of the United States in Force on January 1, 2013. Washington, D.C.: United States Department of State.  Retrieved from http://www.state.gov/documents/organization/218912.pdf