15 Jan International Copyright Law
International Copyright Law: A Brief Overview – by guest contributor Allison Scott
Introduction by Marleen Seegers – first posted in January 2013.
Before co-founding 2 Seas Agency in 2011, I worked at the rights and licenses department of Editions Stock in Paris for over five years. Founded in 1708, Stock is France’s oldest publishing house—it comes as no surprise that a considerable number of its authors are no longer among the living.
My job as Rights Manager was to secure foreign rights deals for all the works in which Stock held such rights, which was basically its complete French language catalog 1, including its enormous backlist. We’re talking, among others, about authors which are now considered as “classics” in French literature, such as Louis Aragon and Jean Cocteau, and which are translated throughout the four corners of the globe.
This led to more than one tricky situation with regards to copyright protection in foreign territories. Whereas certain deceased authors were still protected by French copyright law, it wasn’t obvious whether they still were in far-away (and not so far-away) countries…
Unfortunately, Stock’s situation isn’t isolated. Some grey zones still remain even today, when the Digital Age seems to make the world shrink by the minute. Our guest contributor Allison Scott proposes to dive into the wonderful world of international copyright law, shedding a light on one of the more obscure parts of our daily work as international rights sellers.
For anyone creating or distributing literary or artistic works, copyright is a huge, convoluted, oft-disputed, sometimes subjective (think “fair use”), and all-around sticky issue. When considering the selling or buying of foreign distribution and translation rights, those copyright concerns are multiplied by the number of territories vying for and selling rights and each country’s own idiosyncratic approaches to copyright law.
As the selling of translation and distribution rights abroad has become a commonplace function of publishing houses in conjunction with a network of agents, sub-agents/co-agents, and scouts, it might be easy to forget the arduous and continuing development of legislation and treaties which enables the protection of copyright internationally. This protection of rights allows rights holders (publishers and authors) the control to monetize their content, creating the business of translation that fuels the ever important exchange of ideas among nations.
So how does copyright function internationally and what does that mean for foreign rights buying and selling?
Let us first consider the current state of international copyright law. According to William Patry, a lawyer and noted scholar on copyright law, “International copyright law refers, as the word international indicates, to obligations among nations, and not to a supranational body of law binding on all nations. International copyright law exists in a patchwork quilt of treaties, multinational and bilateral agreements, implemented in national laws.” 2 That is, there isn’t a law that governs international copyright, but rather countries sign treaties with other countries in which they agree on certain aspects of copyright, and those aspects are incorporated into the member country’s national laws.
Chief among international copyright agreements is the Berne Convention for the Protection of Literary and Artistic Works. 3 The Berne Convention, established in 1886 and revised numerous times, describes a minimum standard of copyright protection which all of its signatory countries agree to.
- A work created in a contracting country is protected under the copyright laws of every other contracting country. “If, however, a contracting State provides for a longer term than the minimum prescribed by the Convention and the work ceases to be protected in the country of origin, protection may be denied once protection in the country of origin ceases” (WIPO, see note 2).
- Copyright covers literary, artistic, and scientific works and affords the copyright holder exclusive distribution and subsidiary rights (including translation, adaptation, performance, etc.).
- The creator of the work holds copyright at creation of the work and is not required to follow any formality (like registering) in order to claim copyright.
- For printed works, the minimum duration of copyright is fifty years after the author’s death. Special rules apply to orphan works (see note 2).
The Berne Convention creates for its 166 contracting countries a level playing field of copyright protection that protects the property and moral rights of authors and incentivizes authors and publishers to disseminate their content abroad. It should be noted that works published in foreign countries are subject to that country’s copyright laws, rather than carrying the protection of their country of origin’s laws.
While all Berne Union countries adhere to the minimum copyright protection, authors may find the copyright laws of foreign countries more or less advantageous. For example, the duration of copyright in the United States for works authored after 1978 is the life of the author plus 70 years. However, in many other Berne Union countries, for example China, the duration is only 50 years after the author’s death. Thus, works still considered under copyright in the US may be in the public domain in China and can be translated and distributed without permission or payment to the copyright holder. Conversely, the copyright of a Chinese work extends that additional 20 years in the US market, a distinct advantage for the Chinese copyright holder. In addition to the Berne Convention, there are three other important international copyright agreements:
- The Universal Copyright Convention (UCC), created in 1952 and revised in 1971, was an alternative to the Berne Convention administered by UNESCO, but was subsumed into the Berne Convention in 1989.
- The WIPO Copyright Treaty, adopted in 1996 as a special agreement under Article 20 of the Berne Convention and which primarily seeks to move international copyright law into the digital age with consideration of the copyright of computer programs and also the protection against digital piracy.
- The TRIPs Agreement (Agreement on Trade-Related aspects of Intellectual Property Rights), created in 1994 and administered by World Trade Organization, governing more than 140 members. This agreement is particularly interesting because, for the first time, intellectual property was included in trade agreement. Therefore, under TRIPs, countries can impose sanctions on other countries on the basis of intellectual property violations. While the Berne Convention set high standards for copyright protection, and the member countries are to implement those standards in their own laws, the Berne Convention itself has no mechanism for enforcement. Because of this, governments, like the US, continued to make bilateral agreements on a country-by-country basis to ensure that their citizens’ copyrighted content was duly protected and that the protection could be enforced. TRIPs, then, provides a new, strong, and enforceable agreement regarding intellectual property among many nations.
So what does all of this mean? Let us first consider a world without international copyright law, one in which countries do not recognize the rights of foreign authors.
As a case study to illustrate this situation, let’s consider Russia. Russia held no multilateral international copyright treaties until the USSR joined the Universal Copyright Convention (UCC) in 1973. Before that time, a Russian publisher or individual could reproduce, translate, and distribute the works of foreign authors freely, without the permission of the author and without paying licensing fees or royalties.
As of 1973, Russia and the other nations of the USSR were held to the stipulations of the UCC, which stated that any works created in UCC signatory countries after the USSR joined the treaty were covered under USSR copyright laws, and USSR works were likewise covered in each signatory country under each country’s respective copyright laws. Every foreign work published before 1973 continued to be considered in the public domain in Russia and other USSR nations and many authors and publishers continued to have their intellectual property reproduced in these territories without permission or payment.
Even after Russia joined the Berne Convention in 1995, foreign works produced before 1973 continued to be considered public domain. It was not until 2004, under Law No. 72-FZ “On Amending the Law on Copyright and Related Rights,” that Russia retroactively recognized the copyright of works published before 1973. 4
While this was good news for the copyright holders that had previously been considered in the public domain in Russia, it presents new problems for these copyright holders and the foreign agents representing those rights to Russia. Specifically, Russian publishers that have translated and distributed these works for years must suspend distribution and, for the first time, seek those rights from the copyright holder. Additionally, if there were several publishers distributing this work, now they must compete for exclusive distribution rights in their territory and language.
Will the copyright holder insist that a new translation be done? Will the Russian publishers consider the cost for rights too great and thus effectively end distribution of these works in their territory? Across the globe still, especially nations outside the WTO and the TRIPs agreement, there are countries that serve as harbors for book and intellectual piracy groups that copy and distribute content, and as yet there isn’t a solution for authors which suffer this copyright infringement in those countries. Even in nations signed to the treaties there continues to be pervasive copyright infringement. It wasn’t that long ago that the WTO called China out on its lack of copyright law enforcement.
As nations come into line, though, and experience transitional processes similar to Russia and China, it will take dedicated publishing professionals, authors, and rights agents to navigate the diverse international rights landscape and continue to advocate for authors and copyright holders.
- World Intellectual Property Organization administered treaties
- The International Publishers Association and copyright advocacy
- Catch up on Canada’s recent copyright changes, precipitated by the Copyright Modernization Act (2012).
- Unlike in most English speaking countries, there aren’t many literary agents in the French publishing landscape. Authors mostly sign their contracts directly with publishing houses, letting them also control the subsidiary rights in their works. ↩
- William F. Patry, Patry on Copyright (2012). ↩
- From the World Intellectual Property Organization, a summary of the Berne Convention, and also the full text. ↩
- See WTO, Report of the Working Party on the Accession of the Russian Federation to the World Trade Organization; p. 318, paragraph 1242 regarding Law No. 72-FZ and the retroactive rehabilitation of copyright for works published before 1973. ↩