International Copyright Protection Primer

2. Trans-Pacific Partnership
• Proposed Trade Agreement Between 12 Pacific
Rim Countries
• Provides minimum level of protection for
intellectual property, including trademarks,
copyrights & patents
• Copyright term extended life of the author plus
70 years for all member countries (US term
already)

3. Copyrights- What do they protect?
• “Original works of authorship fixed in any
tangible medium of expression …”
• Only the “expression” is protectable, not the
underlying idea itself.
• Fixed- does not mean human perceptible-
communicated with a device is okay.

4. Copyrights- Examples
• Literary works (business/training manuals)
• Musical works (marketing jingle)
• Pictorial, Graphic or Sculptural works (marketing
photographs)
• Audiovisual works (television commercials)
• Sound recordings (radio commercials)
• Architectural works (office/plant design)
• Computer Software (source code)
• Content of a Web Site (text, pictorial or graphic content,
etc.)
• Any other original work of authorship “expressed” in a
tangible medium of expression

5. Main Points for International IP "System"
• National Laws that Create IP Rights Have a
Legal Binding Effect Within Only the Nation
• International Treaties and Institutions
– Create and promote minimum legal standards
that are incorporated into national laws and
rules.
– Try to harmonize national IP laws and rules
• In Other Words, there is NO International
Intellectual Property Law
– All IP is local.

6. International IP Treaties
• Old IP Treaties (remember)
– Paris Convention (1883)- Utility
Patents & Design Patents/Industrial
Designs
– Berne Convention (1886)- Copyrights

7. International IP Treaties
• Common to both Paris & Berne Conventions
– National Treatment
– Minimum Standards
– If Non-Self Executing- need domestic enactment.
 Important because national laws enacting these
treaties can have slight differences between
countries that skirt some of these requirements

8. International IP Treaties
• TRIPS- Agreement on Trade Related Aspects
of Intellectual Property
– Directly links IP to trade & provides dispute
resolution
– Minimum standards for copyrights, trademarks,
geographical indicators, industrial designs,
patents, integrated circuits & trade secrets

9. Copyrights- Key Themes
No Real Copyright Law
1400’s 1710
Statute
of Anne
1600’s200’s

10. Copyrights- Key Themes
1787
Copyright Clause
Drafted
US Constitution
1852
France Unilaterally
Extends Protection
to All Foreign Works
1886
Berne Convention

11. Copyrights- Key Themes
1969
Internet
1991
World Wide Web
1998
Digital Millennium
Copyright Act
(DMCA)
1994
TRIPS

12. Copyrights- Key Themes
• Two Different Traditions
– UK/US- Utilitarian Rationale for Copyrights
 Copyrights granted to serve greater public good
– Continental Europe- Author’s Rights Rationale
 Individual authors entitled to rights of their creations
through natural law

13. Author’s/Natural Rights
• Term “author’s right” used instead of copyright
– Why is this difference in terminology important?
• Focus on individual author’s rights
– Different focus on what is protected as compared
to “copyright”
– Not an “author” (e.g., a performer) you are given
lesser, neighboring rights.
• Natural Rights Theory eliminates some of the
problems of economic justification
– But still does not solve the term problem

14. Copyrights- Key Themes
• Why is knowing the difference between
copyrights and author’s rights important?
– Among other things, it will determine what is
protected, what rights are granted, term, how to
obtain protection, etc.
– Will affect harmonization of copyright laws
between countries
– Better understand what issues might come into
play in various countries (e.g., former UK colony
v. continental Europe country)
 Might be okay in one country but in deep trouble in
another

15. Acquiring Copyrights & Neighboring Rights
• Point of Attachment
• Prohibition Against Formalities
• Retroactivity

16. Point of Attachment
• What does “point of attachment” buy you?
– Entitled to national treatment in all member
countries.
– In essence, automatic copyright protection in all
member states.
• Take home points
– It is good to know member states, because again
not all countries are members of WTO or the
Berne Convention.

17. Acquiring Copyrights & Neighboring Rights
How & when do you get
copyright protection?
Put your pen to paper…
Save it to your computer…
When you fix your work
in a tangible medium!

18. Acquiring Copyrights & Neighboring Rights
Great, how do I get protection
outside the United States?
Where do you live?

19. Acquiring Copyrights & Neighboring Rights
Great, how do I get protection
outside the United States?
Where do you live?
Berne Union
Member Country
1. National of…
2. Habitual residence in…
Automatic
Protection
in all Berne
Union
Countries!

20. Acquiring Copyrights & Neighboring Rights
Great, how do I get protection
outside the United States?
Where do you live?
Not a national
or habitual resident
of Berne Union
country!
Not a Berne Union
Member Country
Not a Berne Union
Member Country

21. Acquiring Copyrights & Neighboring Rights
Great, how do I get protection
outside the United States?
1. First publish in
Berne Union Country
Not a Berne Union
Member Country

22. Acquiring Copyrights & Neighboring Rights
Great, how do I get protection
outside the United States?
2. Simultaneously
(30 days) publish in
Berne Union Country
Not a Berne Union
Member Country

23. Acquiring Copyrights & Neighboring Rights
Point of Attachment
National Treatment

24. Acquiring Copyrights & Neighboring Rights
• Berne Convention Articles 3 and 4
– Author entitled to protection under the Berne
Convention when a “point of attachment” exists
– Authors treated differently
• Berne Nationals
– Point of attachment established upon creation of
the work
– Does not matter if published or unpublished
• Non-Berne Nationals- Point of attachment
– Published in Berne country first or simultaneous
– Author is a habitual Berne country resident

25. Prohibition on Formalities
• Article 5 of the Berne Convention
– Bars countries from imposing formalities on
foreign nationals of Berne countries
– E.g., U.S. can’t require registration
– Country of origin controlling not nationality
– Can impose formalities on own nationals
• Take Home
– No real prosecution business for copyrights in
law firms.

26. Prohibition on Formalities
• BUT if a “US Work”- US Country of Origin
• Register important works- Copyright registration
is inexpensive but very important to protect your
rights for any subsequent litigation.
– To file suit for money you will need to register.
– Registered works may be eligible for statutory
damages and attorney's fees in successful
litigation.
– You can do it yourself.

27. Independent Treatment
Point of Attachment
National Treatment
Country of
Origin (A)
Berne Union Country (B)
Work Not
Protected!

28. Summary- Checklist Points
• Point of Attachment
– National of Berne Country or Not?
– Habitual Residence in Berne Country?
– Published or simultaneous published in Berne
Country?
• Prohibition Against Formalities
– Country of Origin Counts- Berne 5(4)
– Can Impose Formalities in Country of Origin
– Independent Treatment
 Copyrights in other countries exist independently of
the copyrights in the origin country

29. Retroactivity
• Country Joins WTO (TRIPs)
– Works in public domain remain in public domain
 default rule for international treaties- no retroactivity
– Exception: Article 18(1) must protect works not
fallen into public domain in country of origin
– Must extend protection to all existing foreign
works still under copyright protection
– All future works protected

30. Neighboring Rights- Performance Rights
• Neighboring Rights
– Not copyrights, but a close cousin
– E.g., Performance or sound
recordings
• Take home tip
– US not a member of Rome
Convention
– Rome convention allows US
performers back door protection
although US is not a member state
 Performance in a Rome Convention
country
• Example, See Bruce Springsteen
Case

31. Ownership
• Continental Countries
– Author limited to “flesh-and-blood” authors not
corporate entities
– Generally do not recognize “work for hire”
doctrine
 Germany one of the worse- prohibits authors from
completely assigning away rights
– Dualist view- economic rights v. moral rights
– Creates licensing nightmares
• Common Law
– Generally recognize “work for hire” doctrine
 Note US paternalistic nature- termination rights

32. Summary
• Copyright or Neighboring Right?
• Fixed medium?
• Point of Attachment
– Berne national?- No publication required
 Habitual resident of Berne country = national
– Non-Berne resident- publication or simultaneous
publication in Berne country
 Simultaneous= 30 days
• National Treatment- Point of Attachment gets you
national treatment.
– Independent treatment- get protection regardless whether
you have protection in country of origin
– Berne Convention gives minimum standards
• Prohibition Against Formalities
– Applies only to “other than the country of origin”
 E.g., can treat own residents worse than foreign holders (but
you can treat foreigners equally worse if originate work in your
country)

33. What can be Protected?
• The “Expression” not the idea itself…
• Laundry list of works that can be protected.

34. What Rights are Granted?
• Berne Convention Protection of Economic
Rights
– Reproduction (Copying) (Distribution)
– Distribution
– Adaptation and Translation (Derivative Works)
– Public Performance, Communication, &
Broadcast (Public Performance)
– Droit De Suite (Resale Right)
• TRIPS
– Rental Rights

35. What Rights are Granted?
• Resale Right- Article 14ter
– Right for authors to recoup money in the resale of
“original” works
– Applies to original manuscript for authors and composers
– This is an exception to the exhaustion doctrine
• Article 14ter(2)- Departure from national treatment
– Recognizes right only if country to which the author
belongs permits the resale right
– Right limited to the extent by the country where protection
is claimed
– In other words, a country that recognizes the resale right
does not have to offer the right to foreign nationals for
countries that do not recognize the right

36. What Rights are Granted?
• Musical Works, Sound Recordings,
Broadcasts …
– Composer- “True Author”- Maximum Rights
– Performer- Copyright or Neighboring Rights
Protection, depending on the country
 Rights granted might be less for performers
– US Composer and Performers generally all
treated the same under copyright law

37. Term- How Long Can You Protect?
• Berne Convention
– Minimum standard life of author plus 50 years
• US
– Depending on a number of factors, but generally
life of author plus 70 years
• Berne- Rule of Shorter Term
– Country with longer copyright term does not
have to grant authors a term longer than set by
the country of origin of the work

38. Term- How Long Can You Protect?
• Problem- Copyright Term Arms Race
• Rule of the Shorter Term- Article7(8)
– A country with a longer term does not have to
grant authors any term longer than the term set
by the country of origin
– Exception to rule of independent treatment under
Article 5(2)
• Trans-Pacific Partnership
– Now Life of Author + 70 years

39. Moral Rights
• Moral Rights Under the Berne Convention
– Right to claim authorship (Attribution)
– Object to modification of work (Integrity)
• Take Home Points
– Some Countries- nontransferable and can’t
contract away or different forms of transmitting
rights
– Term for Moral Rights can vary
– Some countries have additional Moral Rights
– Will need to take into account of Moral Rights
Issues when drafting assignments or licenses