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Subject: Copyright Law FAQ (4/6): International aspects
This article was archived around: 9 Apr 96 18:51:01 GMT
Posted-By: auto-faq 2.4
FREQUENTLY ASKED QUESTIONS ABOUT COPYRIGHT (V. 1.1.3)
Part 4 - International aspects.
Copyright 1994 Terry Carroll
(c) 1994 Terry Carroll
Last update: January 6, 1994.
This article is the fourth in a series of six articles that contains
frequently asked questions (FAQ) with answers relating to copyright law,
particularly that of the United States. It is posted to the Usenet
misc.legal, misc.legal.computing, misc.int-property, comp.patents,
misc.answers, comp.answers, and news.answers newsgroups monthly, on or
near the 17th of each month.
This FAQ is available for anonymous FTP from rtfm.mit.edu [220.127.116.11],
in directory /pub/usenet/news.answers/law/Copyright-FAQ, files part1 -
part6. If you do not have direct access by FTP, you can obtain a copy
via email: send a message to email@example.com with the following
lines in it:
DISCLAIMER - PLEASE READ.
This article is Copyright 1994 by Terry Carroll. It may be freely
redistributed in its entirety provided that this copyright notice is not
removed. It may not be sold for profit or incorporated in commercial
documents without the written permission of the copyright holder.
Permission is expressly granted for this document to be made available
for file transfer from installations offering unrestricted anonymous file
transfer on the Internet. Permission is further granted for this
document to be made available for file transfer in the data libraries of
associated with the following Compuserve Information Services fora: the
Legal Forum, the Desktop Publishing Forum, the Show Business Forum, and
the Ideas, Invention & Innovation Forum. This article is provided as is
without any express or implied warranty. Nothing in this article
represents the views of Santa Clara University or of the Santa Clara
Computer and High Technology Law Journal.
While all information in this article is believed to be correct at the
time of writing, this article is for educational purposes only and does
not purport to provide legal advice. If you require legal advice, you
should consult with a legal practitioner licensed to practice in your
Terry Carroll, the FAQ-maintainer, is a computer professional, and is
currently (January 1994) a student in his final semester at Santa Clara
University School of Law, is currently Editor-in-Chief of the Santa Clara
Computer and High Technology Law Journal, and is seeking employment as an
If you have any additions, corrections, or suggestions for improvement to
this FAQ, please send them to one of the following addresses, in order of
I will accept suggestions for questions to be added to the FAQ, but
please be aware that I will be more receptive to questions that are
accompanied by answers. :-)
The following table indicates the contents of each of the parts of the
Part 1 - Introduction (including full table of contents).
Part 2 - Copyright basics.
Part 3 - Common miscellaneous questions.
Part 4 - International aspects.
Part 5 - Further copyright resources.
Part 6 - Appendix: A note about legal citation form, or, "What's
all this '17 U.S.C. 107' and '977 F.2d 1510' stuff?"
TABLE OF CONTENTS (for this part).
Part 4 - International aspects.
4.1) What international treaties exist governing copyright, or
"What is this Berne Convention I keep hearing about?"
4.2) Is Freedonia a signatory to either the Berne Convention or to
the Universal Copyright Convention?
4.1) What international treaties exist governing copyright, or "What is
this Berne Convention I keep hearing about?"
The two major treaties governing copyright are the Berne Convention (U.S.
Senate Treaty Doc. 99-27, KAV 2245, 1 B.D.I.E.L. 715; also reprinted at
17 U.S.C.A. 104). and the Universal Copyright Convention (U.C.C.), (25
U.S.T. 1341, T.I.A.S. 7868, 1 B.D.I.E.L. 813 (1971 Paris text); and 6
U.S.T. 2731, T.I.A.S. 3324, 216 U.N.T.S. 132 (1952 Geneva text)). (Note:
the abbreviation U.C.C. to denote the Universal Copyright Convention
should not be confused with the same abbreviation to denote the Uniform
The Berne Convention for the Protection of Literary and Artistic Works
was established in 1886 in Berne, Switzerland. The text has been
revised, and the current edition (and the one to which the United States
and most other nations are a signatory) is the 1971 Paris text. The
treaty is administered by the World Intellectual Property Organization
(WIPO), an international organization headquartered in Geneva,
The Berne Convention has four main points: National treatment,
preclusion of formalities, minimum terms of protection, and minimum
National treatment: Under Berne, an author's rights are respected in
another country as though the author were a national (citizen) of that
country (Art. 5(1)). For example, works by U.S. authors are protected by
French copyright in France, and vice versa, because both the U.S. and
France are signatories to Berne.
Preclusion of formalities: Under Berne, copyright cannot be dependent on
formalities such as registration or copyright notice (Art. 5(2)).
However, as noted in sections 2.5 and 2.7, this provision apparently does
not prevent a member nation from taking adherence to formalities into
account when determining what remedies apply.
Minimum terms of protection: Under Berne, the minimum duration for
copyright protection is the life of the author plus 50 years (Art. 7(1)).
Signatory nations may have provide longer durations if they so choose.
Minimum exclusive rights: Under Berne, a nation must provide for
protection of six rights: translation (Art. 8(1)), reproduction (Art.
9(1)), public performance (Art. 11(1), and Art. 11ter), adaptation (Art.
12), paternity (Art. 6bis(1)) and integrity (Art. 6bis(1)). In certain
of these areas, U.S. copyright law does not quite align with Berne. For
example, Berne requires that the paternity and integrity rights endure
for the same term as the other rights (Art. 6bis(2)), while in the U.S.,
those rights terminate at the death of the author (17 U.S.C. 106A(e)).
The two have been reconciled by the premise that other sources of federal
law, such as trademark, combined with the trademark, unfair competition,
and defamation laws of the individual states, satisfy these requirements.
The Universal Copyright Convention was originally written in 1952 in
Geneva. It became effective in 1955. Like the Berne Convention, the
text has been revised. As with the Berne Convention, the most recent
revision was in Paris in 1971. The United States is party to both the
1952 Geneva text and the 1971 Paris text. The U.C.C. is administered by
UNESCO, a United Nations agency.
Like Berne, the UCC requires national treatment for authors. However,
the UCC differs from Berne in four material ways. First, the UCC permits
(but does not require) member states to require formalities such as
copyright notice and registration as a condition of copyright (Art. III).
Second, copyright duration must be until least 25 years after the
author's death or after the first publication, depending on whether a
nation calculates duration based on the author's life or on publication
(Art. IV). Third, the UCC's provisions on minimum rights are
considerably less demanding than Berne's; the UCC demands recognition
only of the rights to reproduce, adapt, and to publicly perform or
broadcast the work. Furthermore, the UCC expressly permits a nation to
make exceptions to these rights, as long as the exceptions do not
conflict with the spirit of the treaty (Art. IVbis). Fourth and finally,
the UCC recognizes the Berne Convention, and includes language so that,
between two nations which are signatories to both Berne and the UCC, the
Berne Convention controls and the UCC does not apply. Furthermore, if a
nation is a signatory to both conventions, and withdraws from Berne, it
will not be protected by the UCC (Art. XVII and Appendix). These
provisions were added by nations fearing that creation of the UCC in 1955
would undermine the already existing Berne Convention.
The United States was the primary mover behind the creation of the
U.C.C., because the formalities that existed in U.S. copyright law at
that time did not permit adherence to Berne. With the U.S. joining
Berne, and consequently abandoning the formalities that were the driving
force behind the U.C.C., the significance of the U.C.C. is waning.
In addition to Berne and the UCC, other copyright treaties include the
1971 Geneva Convention for the Protection of Producers of Phonograms
Against Unauthorized Duplication of Their Phonograms (25 U.S.T. 309,
T.I.A.S. 7808, 888 U.N.T.S. 67), the 1984 Brussels Convention Relating to
the Distribution of Programme-Carrying Signals Transmitted by Satellite
(T.I.A.S. 11078), and the 1911 Buenos Aires Convention on Literary and
Artistic Copyrights (38 Stat. 1785, T.S. 593, 1 Bevans 758), which
regulated copyright in the Americas. The U.S. did not sign the Buenos
Aires Convention when it was revised in 1948, and all of its signatories
are now also signatories to either or both of Berne or the UCC. The
Buenos Aires Convention is now essentially a dead letter in international
The texts of both versions of the U.C.C., the Buenos Aires Convention,
and the Geneva Convention, are in Circular 38c, "International Copyright
Conventions," available from the Copyright Office (see section 5.1).
Texts of the Berne Convention and the U.C.C. are available by anonymous
FTP from the Multilaterals Project (see section 5.2).
4.2) Is Freedonia a signatory to either the Berne Convention or to the
Universal Copyright Convention?
The answer in section 4.1 is generally almost always followed by a query
as to whether a specific country has signed one or more of the
conventions, so the following lists provide that information.
This data comes from the January 1992 edition (the most current) of
Treaties In Force, with some supplemental information as noted. Each
list indicates only that the nations listed have signed the convention.
It does not indicate whether a particular nation has also signed one or
more of the optional protocols associated with the convention. For
example, Protocol 1 of the U.C.C. establishes that stateless persons are
to be considered nationals of the nation within which they reside for
purposes of the convention; a number of nations have signed the U.C.C.,
but have not signed that protocol. If you really want to get down to
that level of detail, consult a current edition of Treaties In Force.
If you're interested in knowing more detail about what copyright treaties
are in effect between the U.S. and a particular nation, there is a table
in the back of Treaties In Force containing an alphabetical list of
countries, listing the copyright treaties (both unilateral and
multilateral) to which it is a party with the U.S., including the dates
on which each treaty entered into force. This table is also reproduced
in the Copyright Office's Circular 38a, "International Copyright
Relations of the United States," contains You can order it from the
Copyright Office (see section 5.1). This circular is also included in
Copyright Office information kit 100. A similar table is included as an
appendix in the Nimmer treatise (see section 5.1).
Note that, while the U.S.S.R. is listed as a signatory to the 1952 Geneva
text of the U.C.C., the status of the former soviet states is unclear at
this time. I've been told that Russia and some of the other newly
independent states have announced that they will honor nearly all of the
treaties of the former Soviet Union. Other states, for example, Estonia,
Latvia, and Lithuania, take the position that they were never legally
part of the Soviet Union, and that treaties entered into by the Soviet
Union are totally irrelevant to their international obligations.
In addition, I've been cited to an article entitled "Post-Soviet Law: The
Case of Intellectual Property Law," by Peter Maggs (an attorney and
professor at University of Illinois at Urbana-Champaign) in the Harriman
Institute Forum, Vol. 5, No. 3 (Nov. 1991), pp. 3-9. Professor Maggs
reportedly concludes that, under international law, all newly independent
states that were previously legitimate parts of the USSR (i.e., all
except Estonia, Latvia, and Lithuania), remain bound by the UCC, although
whether they actually have functional copyright protection is another
Thank you to <firstname.lastname@example.org> for contacting Professor Maggs and
providing me with most of the information in the preceding two
In addition, in May 1993, the TASS news agency reported that Russia has
enacted a new copyright law that is Berne-compliant, in preparation for
an anticipated signing of the Berne Convention.
The following nations are signatories to the Berne Convention (1971 Paris
text): Argentina, Australia, Austria, the Bahamas, Barbados, Belgium,
Benin (formerly Dahomey), Brazil, Bulgaria, Burkina Faso (formerly Upper
Volta), Cameroon, Canada, the Central African Republic, Chad, Chile,
Colombia, Congo, Costa Rica, Cote d'Ivoire (Ivory Coast), Cyprus,
Czechoslovakia, Denmark, Ecuador, Egypt, Fiji, Finland, France, Gabon,
Germany, Ghana, Greece, Guinea, Holy See (Vatican City), Honduras,
Hungary, Iceland, India, Ireland, Israel, Italy, Japan, Lebanon, Lesotho,
Liberia, Libya, Liechtenstein, Luxembourg, Madagascar (Malagasy
Republic), Malawi, Malaysia, Mali, Malta, Mauritania, Mauritius, Mexico,
Monaco, Morocco, the Netherlands, New Zealand, Niger, Norway, Pakistan,
Peru, Philippines, Poland, Portugal, Romania, Rwanda, Senegal, South
Africa, Spain, Sri Lanka (formerly Ceylon), Suriname, Sweden,
Switzerland, Thailand, Togo, Trinidad and Tobago, Tunisia, Turkey, the
United Kingdom, the United States, Uruguay, Venezuela, Yugoslavia, Zaire,
and Zimbabwe. According to U.S. State Department Dispatches published
since January 1992, additional nations to sign Berne include Gambia (Dec.
12, 1992), China (July 10, 1992) and Kenya (March 11, 1993).
The following nations are signatories to the Universal Copyright
Convention (1971 Paris text): Algeria, Australia, Austria, the Bahamas,
Bangladesh, Barbados, Bolivia, Brazil, Bulgaria, Cameroon, Colombia,
Costa Rica, Cyprus, Czechoslovakia, Denmark, the Dominican Republic,
Ecuador, El Salvador, France, Germany, Grenada, Guinea, Hungary, Italy,
Japan, Kenya, Korea, Mexico, Monaco, Morocco, the Netherlands, Norway,
Panama, Poland, Portugal, St. Lucia, St, Vincent and the Grenadines,
Senegal, Seychelles, Spain, Sri Lanka (formerly Ceylon), Sweden, Trinidad
and Tobago, the United Kingdom, the United States, Vatican City, and
The following nations are signatories to the Universal Copyright
Convention (1952 Geneva text): Algeria, Andorra, Argentina, Australia,
Austria, the Bahamas, Bangladesh, Barbados, Belgium, Belize, Bolivia,
Brazil, Bulgaria, Cambodia, Cameroon, Canada, Chile, Colombia, Costa
Rica, Cuba, Cyprus, Czechoslovakia, Denmark, the Dominican Republic,
Ecuador, El Salvador, Fiji, Finland, France, Germany, Ghana, Greece,
Grenada, Guatemala, Guinea, Guyana, Haiti, Holy See, Hungary, Iceland,
India, Ireland, Israel, Italy, Japan, Kenya, Korea, Laos, Lebanon,
Liberia, Liechtenstein, Luxembourg, Malawi, Malta, Mauritius, Mexico,
Monaco, Morocco, the Netherlands, New Zealand, Nicaragua, Nigeria,
Norway, Pakistan, Panama, Paraguay, Peru, Poland, Portugal, St. Lucia,
St, Vincent and the Grenadines, Senegal, Seychelles, Spain, Sri Lanka
(formerly Ceylon), Sweden, Switzerland, Tunisia, the Union of the Soviet
Socialist Republics, the United Kingdom, the United States, Venezuela,
Yugoslavia, and Zambia.