International Copyright Summaries To Accompany: "Copyright Law & Graduate Research" By Kenneth D. Crews Summary 1: "The International Context of Research and Publication" Authors of scholarly works inevitably work in an environment that crosses national boundaries and is affected by the laws of multiple countries. An American student might conduct research in Japan, then produce a dissertation published in the U.S. and distributed to Canada, France, and many other countries. A student may live and study in Italy and do all research in that one country, but later publish the dissertation with UMI in the United States, thus likely subject to U.S. law. The Dissertation Publishing division of ProQuest Information and Learning in fact publishes many dissertations from many universities outside the United States and sells them to readers throughout the world. The growth of the Internet also means that nearly every scholar is routinely accessing materials from scattered countries, and a dissertation posted to a website is available worldwide and possibly subjected to multitudes of legal regimes. Although this manual focuses on American copyright law, it should offer some helpful insights for researchers in the U.S. and around the world. First, American law applies to research conducted inside the U.S. and to publications available inside American borders. A brief guide to American law is relevant to works from many countries. Second, copyright laws of most countries have been roughly "harmonized," so that they have generally comparable fundamental provisions. Thus, many basic principles of American copyright law as described in this manual are valid under the laws of many other countries as well. These summaries will underscore some foreign and international copyright issues of importance to scholars. They will not make any detailed attempt to address the particulars of copyright in any single foreign country, but rather will provide general guidance about the framework of international copyright law and specifics relevant to the use and protection of foreign works under U.S. law. These summaries will also sometimes offer comparative glimpses of relevant law in a few other major countries. Summary 2: "Fair Use and the World" The copyright laws of most countries provide various exceptions to or limitations on the basic rights of the copyright owner. Like American law, most of these exceptions are highly specific and apply only if the situation meets a litany of detailed conditions. But U.S. law also includes a highly flexible provision called "fair use." It is in many respects similar to the concept of "fair dealing" in the United Kingdom, and both concepts are rooted in common-law traditions that enable judges to make equitable decisions based on the facts of each case. The Canadian statute emphasizes flexibility through its simplicity: "Fair Dealing for the purpose of research or private study does not infringe copyright." The law's specific meaning is left to judicial development. The U.S. statute on fair use provides only a general framework, described in Part III of this manual. The flexibility and potential breadth of fair use sometimes has been problematic from the perspective of other countries, especially countries that base their laws on the system of civil codes, where statutory language generally defines the scope of permissible activities. Despite the criticism of fair use from other countries, even civil-law nations are finding the need for doctrines that infuse some workable flexibility into copyright law. For example, Germany has a judicially created principle of "free utilization" that has allowed borrowing from an existing work for parody and other artistic expressions. By contrast, common-law countries, including the U.S. and U.K., have found that fair use alone is not adequate and have enacted other, more elaborate, exceptions that are more akin to civil-law systems. Whatever the merits of or problems with American fair use, it is applicable law only within the jurisdictional borders of the United States. Hence, if a researcher is in the U.S., he or she may apply fair use with respect to works that might have originated anywhere in the world. On the other hand, if that same researcher is in France, Japan, or anywhere else, the researcher must comply with the laws of that country, even if the materials in use originated in the U.S. Summary 3: "Specific Exceptions for Research and Education" While the law of fair use is flexible, and is often interpreted to serve some common needs of education and research, some countries address these issues more directly, with detailed statutes applicable to quotations and copying for education and research. For example, Section 51 of the German Copyright Act strictly defines permissible quoting. Extensive quoting is allowed for scholarly study, if it is for the purpose of clarifying an existing, published work. Short quotations are allowed in other contexts. The Brazilian Copyright Act of 1998 does not provide a concept of fair use, but it does have detailed provisions for quotations and copies for education and research. Article 46, for example, allows passages or extracts of works to be reproduced for study, criticism, and related purposes. Japanese law similarly relies on detailed statutory exemptions for quotations, rather than a concept of fair use. U.K. law includes elaborate exemptions for some educational uses or scholarship, but generally quotations are left to the less determinative fair dealing. Recent amendments to Canadian law go so far as to sanction the permissibility of manual transcription of works onto blackboards and flipcharts, but even then only under narrow conditions. The Canadian example perhaps unwittingly reveals the hazard of subjecting routine practices to political debate. Summary 4: "Foreign Standards for Copyrightability" The basic structure of copyright law in the U.S. and in more than 140 other countries is shaped by the requirements of the Berne Convention, a multinational treaty that sets standards for the law of each member country and provides that each country will protect works that originate from any of the other member nations. The Berne Convention specifies: "Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention." Of course, an author may look to the law of the country of origin for the domestic law applicable to his or her work. Despite this direct effort to create uniformity of the law, many differences among countries remain. For example, Germany is often regarded among European counties as having a high standard of originality; the U.K. has a relatively low standard, generally requiring only that the work originate from the author who claims rights. Consequently, some works may be protectible in the U.K., but not in Germany. The struggle for protection of data underscores the differences among fundamental national laws. In the U.S., the Feist decision from the Supreme Court (see footnote 17) left many collections of data without protection, while they may well meet the standard of originality elsewhere. Many other countries, such as Sweden and the U.K., also do not protect data compilations unless they are selected or arranged in some creative manner, as under American law. Faced with mounting demand to protect the huge investment businesses make in creating and maintaining databases, the European Commission issued a directive in 1996 mandating each member country to grant copyright protection for databases "which, by reason of the selection or arrangement of their contents, constitute the author's own intellectual creation. . . ." The directive also requires EC countries to adopt additional legal protection against the extraction or re-utilization of the contents of databases if "there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents" of that database. Thus, one may well have copyright protection in the U.S. and in European countries for a database that evidences some degree of creativity. But if the data are gathered and stored for retrieval in no particular order-or in some unoriginal manner-then protection may be available only if the applicable law includes a separate regime specifically for databases. Summary 5: "Varying Standards of Copyrightability" The Berne Convention requires member countries to grant protection to original works, but not all countries follow the U.S. model of further requiring that the work be fixed in a tangible medium. Under Swiss law, a work is protected if it possesses "individual character," and it need not be "fixed." Therefore, an original, extemporaneous speech in Switzerland may have copyright protection, while a similar speech that is not written in advance, recorded, or transcribed would not be fixed and would not be protected under American law. Among other countries generally not requiring "fixation" of the work are Sweden and Brazil. The U.K. is similar to American law in requiring fixation of the work in some medium. Those countries that do not require fixation of the work often face a dilemma in copyright litigation: a valid copyright may be asserted, but without tangible copies, the evidence of its existence and specific attributes can be difficult to prove. Granting copyright protection without fixation of the work is also highly problematic for works of visual arts, where the image often needs to be embodied and perceived to have any meaning whatsoever. Consequently, Japanese law and the law of many other countries specify that paintings, drawings, and cinematographic works must be fixed to have protection. Summary 6: "Apply Local Law" Keep in mind the general premise: When in the U.S., apply U.S. law to the work you are creating or using. If you are doing your research outside the U.S., you must apply the law of that jurisdiction. Under the requirements of the Berne Convention, of which most countries are members, you generally need to give works that originate from any member country the same legal treatment applicable to works of domestic origin. Summary 7: "Works of Other Governments" While Section 105 of the U.S. Copyright Act states clearly that works of the U.S. government are not protectible by copyright, some federal agencies have interpreted this provision to mean that the original works from the federal government are in the public domain only inside the United States where Section 105 has any force of law. Hence, a federal document may lack protection at home, but if you are using the U.S. federal document in a foreign country, it may well have copyright protection under the laws of that country. The U.S. government is not known for rigorously enforcing that interpretation against well-meaning individuals; it is apparently asserted to prevent foreign businesses from using massive databases and other valuable works for commercial purposes. If you are using materials produced by other governments you must look principally to the laws of the nation of origin. For example, Sweden exempts statutes, judicial opinions, and other official records from copyright, but it allows protection for maps, musical works, and other more creative products of public employees. Nevertheless, the public is licensed to use those materials, but must compensate the author. Japan also itemizes classes of governmental works that are without copyright protection, but generally provides for broad rights to quote from and reprint other materials produced by the government and intended for general dissemination. Confidential documents, therefore, may not be so easily used. The Japanese parliament specifically adopted a general rule allowing excerpts in order to alleviate the need to consult with government agencies for common uses. By contrast, Australian law does not include any general exemption for governmental works, leaving most of them with full copyright protection. Summary 8: "Elimination and Survival of Formalities" The elimination of the "formalities" requirement in American law was a direct result of U.S. entry into the Berne Convention. The treaty requires that member countries grant copyright protection without the prerequisite of formalities, such as registration and notice. Some critics argue that that the U.S. has not fully complied, because American law gives the full range of remedies in an infringement action only if the work in question was registered before the infringement took place. See footnote 27. Consequently, a copyright owner may well have legal rights even without using any of the formalities, but in an American courtroom the owner may not get the full range of legal benefits. In reality, without the ability to recover attorney fees, a copyright may simply not be feasible to enforce at all. Registration is also generally a prerequisite to filing an infringement lawsuit in an American court. Undoubtedly to avoid criticism from foreign copyright owners and potential violations of treaties, the U.S. statute imposes this requirement only with respect to "United States works," which are generally defined (see Section 101 of the Copyright Act) to include works first published in the U.S. or simultaneously in the U.S. and in another country that either has no copyright treaty with the U.S. or has a treaty and gives copyright protection for at least the same term granted under American law (generally life of the author plus seventy years). This convolution is not entirely harmonious or logical, and thus is further reason why a copyright owner should register the work early if enforcement in the U.S. is at all necessary, desirable, or even imaginable. Summary 9: "Worldwide Expansion of Copyright's Duration" The addition of twenty years to the term of copyright protection was a direct result of international developments. Although the Berne Convention requires protection for a term of at least fifty years after the author's death, several European countries had chosen to grant protection for seventy years after death. Moreover, Germany and many other major countries follow a "rule of the shorter term," whereby protection was granted in those countries to foreign works, but only for the shorter of either the term under German law or under the law of the country of origin. Consequently, an American work was protected in Germany for only fifty years, while a German work had protection out to seventy years-after the author's death, of course. Meanwhile, a German work that was in the U.S. had protection for the fifty-year term, but enjoyed seventy years in its home country. Faced with these in equalities, and faced with pressure from prominent copyright owners who simply wanted more years of revenue, Congress in 1998 granted the additional twenty years. In 1993 the European Council issued a directive to member countries requiring them to adopt the general rule of life plus seventy years, and consequently that term has become the norm in Western Europe. It is also followed in many other parts of the world, but not always. Brazil uses life plus seventy, while Japanese law still follows life plus fifty. Summary 10: "The WIPO Copyright Treaty" The major changes rendered by the DMCA-concepts of "circumvention" and "copyright management information"-are a direct product of international developments. In December 1996 negotiators completed the WIPO [World Intellectual Property Organization] Copyright Treaty, which called for each member nation to adopt such provisions, although the treaty did not advance many details about an appropriate statutory enactment. Congress belabored the issue through much of 1998 and ultimately enacted a set of highly complex provisions that are yet to be well tested in courts. Other countries will undoubtedly adopt other or similar versions of the law, potentially altering the way copyrights may be identified and managed in the electronic environment throughout the world. Summary 11: "Continued Need for Formalities" Under the Berne Convention, member countries are obliged not to require "formalities," such as registration and copyright notice, as a precondition to granting copyright protection. Thus, while these formalities are optional under American law, they are generally advisable for a variety of different reasons. Some reasons are practical. The notice and registration make clear that you know about copyright and are asserting your rights, and they inform the reader of the identity of the copyright owner and the origin of the work. Some reasons are legalistic. Most important, timely registration secures the ability to seek "statutory damages" and attorney fees in the unlikely event that you need to enforce your copyright in court. The process and expense of registration are relatively modest, and the potential benefits are considerable, even decisive. If you are serious about protecting your rights to your new dissertation under American law, it is difficult to justify not registering the work with the U.S. Copyright Office. Summary 12: "All Rights Reserved" One common supplemental statement is "All Rights Reserved." This statement grew out of a provision of the Buenos Aires Convention of 1910, which the U.S. and sixteen other countries in the Western Hemisphere joined. It provided for mutual protection of works from one another's countries, but it required formalities, including a statement such as "All Rights Reserved." This treaty and its requirements have been effectively superseded as each participating country has more recently acceded to the Berne Convention and its eradication of formalities. Yet statements about reservation of rights continue to appear on numerous new publications for little apparent reason other than intimidation of infringers, ignorance, or legal inertia. In the long run, "All Rights Reserved" has lost any significant meaning, but its presence on a publication likely does no harm.