Mbu 2520 spring 2018 chapter 13

MBU 2520 Spring 2018 - Eric M. Griffin
CHAPTER 13:
INTERNATIONAL COPYRIGHT
PROTECTION
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International Copyright Protection MBU 2520 Spring 2018 - Eric M. Griffin
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Importance of IP Industries to the US Economy
IP-intensive industries are a major, integral and growing part of the U.S. economy.
Total merchandise exports of IP-intensive industries were $842 billion in 2014
Trademark-intensive industries are the largest in number and contribute the most
employ- ment with 23.7 million jobs in 2014 (up from 22.6 million in 2010).
Copyright-intensive industries supplied 5.6 million jobs (compared to 5.1 million
in 2010) followed by patent-intensive industries with 3.9 million jobs (3.8 million in
2010).
The value added to the GDP by IP-intensive industries accounted for $6.6 trillion in
value added in 2014. Share of total U.S. GDP attributable to IP-intensive industries
increased was 38.2 percent in 2014.

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As important as it is, there is no such thing as an international copyright
law. The law almost always stops at the borders.
 Exceptions include the EU.
So how do you get protection internationally?
1. Register in most important countries.
2. There are several treaties and agreements that allow benefits in
foreign countries.

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HISTORY
• US did not protect foreign works until 1891 and was notoriously thought of as the
world’s worst infringers.
• Arguments made at the time included:
 Literature should not be regulated by law
 Developing nations needs inexpensive access to info and entertainment
(same argument used by developing nations now)
• Bilateral Treaties
• Chace Act (1891)—Allowed reciprocal / between US and one other country
• Superseded by Berne

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• Most important multi-national treaty
• The Berne Convention formally mandated several aspects of modern
copyright law:
1. It introduced the concept that a copyright exists the moment a work is
"fixed", rather than requiring registration.
2. Enforces a requirement that countries recognize copyrights held by the
citizens of all other parties to the convention.
• Admin by WIPO (part of the UN)
• Based in Geneva Switzerland
• Over 175 Nations to-date have signed Berne
• Applies to “literary and artistic works” – but NOT sound recordings (based
on idea that Performers are NOT equal to Authors.
BERNE CONVENTION (1886)

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• Based on National Treatment Principle—every country agrees to give same
protection to foreign citizen’s works as its own citizen’s works
• Sets Minimum Standards of Protection:
1. Life + 50
2. No formalities can be required
3. Exclusive Rights:
• Reproduction
• Translation
• Adaptation
• Public Performance
(No guaranteed right of distribution or public display)
• Included Moral Rights for attribution and integrity
BERNE CONVENTION (1886)

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• EFFECTIVE IN US MARCH 1, 1989—Berne Convention
Implementation Act
• Main interest – combating piracy internationally
• Established and Recognized MORAL RIGHTS. However, the US does
NOT specifically recognize Moral Rights in our copyright law—
Congress argues covered under other laws (defamation, contract, etc.)
• Copyright law in the United States emphasizes protection of financial
reward over protection of creative attribution.
BERNE and THE US

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• Moral rights are rights of creators of copyrighted works generally recognized in
civil law jurisdictions and in some common law jurisdictions.
• Include: 1) Right of attribution, 2) Right to have a work published
anonymously or pseudonymously, 3) Right to the integrity of the work.
• The preserving of the integrity of the work allows the author to object to alteration,
distortion, or mutilation of the work that is "prejudicial to the author's honor or
reputation". Anything else that may detract from the artist's relationship with the
work even after it leaves the artist's possession or ownership may bring these
moral rights into play. Moral rights are distinct from any economic rights tied
to copyrights. Even if an artist has assigned his or her copyright rights to a work
to a third party, he or she still maintains the moral rights to the work.
BERNE and THE US

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• US Joined 1955
• Similar to Berne, but allows formalities
• Requires national treatment
• Life +25
• No protection for SR
• Many countries are members of both and Berne takes
priority. Once the US joined Berne in 1989, UCC only
matters for 1) Countries part of UCC by not Berne, & 2)
works published in US prior to March 1, 1989 NOT
simultaneously published in a Berne country.
UNIVERSAL COPYRIGHT CONVENTION

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GENEVA Passed 1971 / EFFECTIVE MARCH 10, 1974 in USA
• The Convention for the Protection of Producers of Phonograms Against Unauthorized
Duplication of their Phonograms
• Purpose: provide international protection against record piracy
• Recognized rights of reproduction, distribution and importation of SOUND RECORDINGS
ROME Convention recognizes neighbouring rights but US NOT a signatory.
• Neighboring Rights: the term “neighboring rights” comes from, it’s because these rights are
not actually conferred by existing copyright law, but “neighbor” those that are: a copyright is
conferred in the public performance of a composition, and while one is not conferred for the
sound recording, because it “neighbors” the copyright in the composition, most countries treat
it as essentially having the same qualities as the copyright in composition
GENEVAAND ROME CONVENTIONS

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Beginning in the 1980’s, the USA began linking IP protection to
overall trade deals.
NAFTA
• 1992—US, Canada, Mexico
• Protection for computer programs, data compilations & sound
recordings included
• Amongst other rights, provides a Minimum 50 yrs copyright
term for SR
NORTH AMERICAN FREE TRADE AGREEMENT

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GATT
• Purpose: Encourage free intl trade
• Includes TRIPS (Trade Related Aspects of Intellectual Property)
• Importance: Provides practical intl enforcement system for IP
rights which can include injunction and damages, seizure at
borders & Criminal penalties.
• Members must agree to provide substantive provisions of Berne
• No Moral Rights provision (due to US Pressure)
• Includes minimum of Life +50
GENERAL AGREEMENT ON TRADE AND TARIFFS

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URAGUAY ROUND AGREEMENTS ACT (URAA) (1994)
Chapter 11 of US Code which implemented the TRIPS obligations.
An Act of Congress in the United States that implemented in U.S. law the
Marrakech Agreement of 1994. The Marrakech Agreement was part of the
Uruguay Round of negotiations which transformed the General
Agreement on Tariffs and Trade (GATT) into the World Trade Organization
(WTO). One of its effects is to give United States copyright protection to
some works that had previously been in the public domain in the United
States.
Neighboring Rights

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URAGUAY ROUND AGREEMENTS ACT URAA (1994)
• Passed by US in order to implement TRIPS
• Gives performers right to prevent unauthorized fixation and reproduction
of performances
• Term of 50 years from date of performance
• Also protects broadcasters for 20 years
• RESTORATION OF FOREIGN COPYRIGHTS
• Automatic restoration of CERTAIN foreign works in PD in US due to
publication w/o copyright notice due to (1) failure to comply w/ US copyright
formalities, (2) sound recording prior to 1972, (3) no relationship between
source country and US
• Must still be protected in source (original) country
• “Reliance Parity” (who used work while in PD) are immune from CI suit
Neighboring Rights

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• RESTORATION OF FOREIGN COPYRIGHTS
Based on the URAGUAY ROUND AGREEMENTS ACT
• One key point of copyright is ”Once in the PD, always in the PD.”… HOWEVER:
• Automatic restoration of CERTAIN foreign works in PD in US due to
publication w/o copyright notice due to (1) failure to comply w/ US copyright
formalities, (2) sound recording prior to 1972, (3) no relationship between
source country and US
• Must still be protected in source (original) country
• “Reliance Parity” (those who used work while in PD) are shielded
Neighboring Rights

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WIPO
• Agency of United Nations
• Purpose: Increase intl legal protection for IP
1998 WIPO Copyright Treaties – designed to balance rights of creatore and owners
with users and distributors.
1. WIPO Copyright Treaty - Updates Berne re technology developments
Specifically: Reproduction applies to digital world (i.e. download is a reproduction)
2. WIPO Performances and Phonograms Treaty –
Protection for SR distributed digitally over Internet.
World Intellectual Property Organization - WIPO TREATIES

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WIPO Performances and Phonograms Treaty
• First treaty providing INTL PROTECTION for SOUND RECORDINGS digitally
distributed.
• Greater protection than provided for in TRIPS
• Includes Moral Rights
The term for copyright protection in SOUND RECORDINGS varies by country:
EX: US term SR is same as any other copyright term (Life +70), but in EU
Nations WAS only 50 yrs. until 2011 when it was increased to 70 years.
WIPO TREATIES

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ECONOMIC PRESSURE
• Trade Act of 1975 (section 301)—Congress authorized the US Trade Rep to
identify and investigate countries that fail to enforce or protect copyrights; AND
to recommend retaliatory measures
EX: China
• Piracy rate of 90%
• Still insufficient enforcement and protection (per USTR)
• 1995 estimated $1 billion annual loss to IP due to piracy
• Recommended 100% import duties tax on Chinese products to help offset
• China became member of Berne in 1992
• Moving in right direction, not there yet
ENFORCING COPYRIGHT

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1. What treaties are involved?
2. If the foreign country is a member of a treaty to which US is also a member, you
can bring a suit against them.
3. Considerations—worth it? Can be lengthy, complex and thus, costly to litigate
with a foreign entity
4. Whether you sue here or abroad, the law of the infringing country will govern.
5. Know what remedies are available to you before you sue (again, worth it?)
YOU’VE BEEN INFRINGED
IN A FOREIGN COUNTRY
… NOW WHAT?

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Mbu 2520 spring 2018 chapter 13

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