US adherence to the Berne Convention in 1989 has taken a beating on this blog and elsewhere. I disagree with that criticism and will explain why. In short, I think the impact of the Berne Convention on U.S. law is not well understood and that post-1989 changes are wrongly influencing our perceptions of the convention.
The most fundamental point is that Berne is a convention for foreigners. This means Berne does not require a country to do anything for its own authors. We could still have renewal and mandatory notice for works of U.S. origin if we wanted to. The two-tier situation in Section 411(a) which requires pre-infringement registration (or rejection) only for U.S. works illustrates this point. And Berne of course only goes as far as its terms even for foreigners, meaning concretely that we can impose formalities on remedies not required by Berne. And we do: Section 412 conditions awards of attorney's fees and statutory damages on pre-infringement registration, even though registration is a formality otherwise prohibited by Article 5(2).
Berne says nothing about many of the important issues in copyright: it doesn't influence how to determine originality, authorship, substantial similarity, or fair use for starters. It doesn't even cover sound recordings. It doesn't have anything to say about whether caching is the making of a copy (although the U.S. strove to include this in the WIPO Treaties); it doesn't say anything about compulsory license terms or rates or whether an over-the-air radio station that is simultaneously webcast is subject to compulsory licensing. It doesn't say anything about reverse engineering of software or interoperability. And the term of protection it requires is life of the author plus 50 years, not life plus 70.
Alot has happened since 1989, including the WIPO Copyright Treaty, which is a special agreement under Article 20 of Berne. That treaty does obligate the U.S. to have anti-circumvention measures and copyright management information provisions. These obligations became the basis for the DMCA provisions and their presence has led opponents to condemn Berne. I think that is unfair for two reasons. First, the treaty provisions do not spell out the details. But more importantly, the U.S. was in the vanguard in pushing for their inclusion in the treaty. The inclusion was then used as justification for the domestic legislation (we have to do it, the treaty requires us to). That is, of course, sophistry: the only reason there is a treaty obligation is because we wanted one.
The fault (if there be any, a partisan determination) lies not with Berne then, but with U.S. policy. We wanted to join Berne so that we could have a seat at the international table. We do have a seat and we have been using it. But we shouldn't delude ourselves into thinking that we are in an EU situation where Brussels is calling the shots for national governments. The shots being called are ones we want, so the blame or praise begins and ends at home.
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6 comments:
Prof. Patry--
The most fundamental point is that Berne is a convention for foreigners. This means Berne does not require a country to do anything for its own authors.
However, it's only fair to treat all authors the same. Rather than provide Berne treatment to US authors, I think it would be better to provide US treatment to foreign authors. In fact, given that the basic policy of granting copyrights doesn't hinge on borders, I see no reason for foreign authors to not recieve national treatment unilaterally.
We could still have renewal and mandatory notice for works of U.S. origin if we wanted to.
And yet, we'd be better off having these for all works, along with deposit, registration for published works, etc. Let's not forget about the benefits of some parts of the pre-1976 Act law.
And the term of protection it requires is life of the author plus 50 years, not life plus 70.
Prof. Patry, I think you'll find that many of those opposed to life+70 terms find life+50 terms offensive as well. I've been surprised at the popularity of the 1790 term of all things. Personally, I'd favor something of roughly similar length, but with more terms, so as to provide more opportunities for failure to renew.
Let's not forget also that Berne basically led to 104A and 106A, which are not well-liked amongst the less-copyright crowd.
The fault (if there be any, a partisan determination) lies not with Berne then, but with U.S. policy.
Well, Berne is a dumb idea on its own merits, but yes, the lion's share of the blame lies with those that shackled us with it, particularly after the US held out for long, thriving while doing so.
Nevertheless, it represents an obstacle to meaningful reform now, and so we need to escape it.
Anonymous:
I agree it is fair to treat all authors alike and that's the objective of national treatment. And we do treat all authors alike, we "assimilate" foreign authors and treat them for all purposes as if they were U.S. authors. There is the one case, 411(a), where we treat foreign authors better, and the reason was political: the Library of Congress viewed repeal of 411(a) as potentially decreasing its collections, hence the two-tier.
You are certainly correct that Berne did lead to 104A, and as I pointed out in a prior posting, retroactivity is a bit of a pill to swallow, but the number of works, relatively speaking, is not huge, and the U.S. did get very large benefits overseas from U.S. works being protected retroactively in those countries (where they weren't due to lack of national eligibility).
Prof. Patry--
and the U.S. did get very large benefits overseas from U.S. works being protected retroactively in those countries (where they weren't due to lack of national eligibility).
Ah, but I'm not really interested in that. Copyright is in part an inducement to create works. With retroactive copyright, there is no purpose, since the works were already created without it. It is wasteful, and is harmful to the public interest.
Also, I'm generally unconcerned with what other countries do with regards to copyright. We should do what we feel is in our best interests, and by the same token, allow other countries to do the same. As I've previously said, national treatment and an avoidance of mutually exclusive copyright systems is all the international cooperation that seems worthwhile. If other countries want to grant retroactive protection, then that's fine, but I don't regard it as a benefit to the US, or within the scope of what we should care about.
Anonymous:
Perhaps our disagreement stems from who "we" is. At the governmental level, that is the Executive Branch negotiating treaties , and Congress passing implementing legislation for those treatises, "we" is viewed much more broadly than you apparently do. At the governmental level, there are legitimate concerns with trade and balance of payments. If, so example, U.S. consumers have to pay $12 more because of retroactive payment for restored foreign works, but U.S. copyright owners will repatriate $120 in royalties from new royalty payments from restored protection they receive overseas, the government sees that as a good deal, irrespective of whether U.S. corporations receiving that $120 ever reinvest it in new works. In that type of equation, copyright is just another commodity, with domestic and foreign equations being traded off by USTR just like cotton.
But I do think increased foreign protection is good for U.S. consumers without buying into the old "what's good for GM is good for America." It certainly isn't harmful to U.S. consumers for foreign consumers to pay U.S. companies more money.
Prof. Patry--
In that type of equation, copyright is just another commodity, with domestic and foreign equations being traded off by USTR just like cotton.
This doesn't strike me as the best idea in the world. I don't see the purpose of copyright to be tokens which can be traded around to lower the price of imported cars or something. Commerce and copyright are separate matters, with separate concerns. It's no more appropriate to lump them together than it would be with war and commerce. Not that that's stopped us on numerous occassions.
But I do think increased foreign protection is good for U.S. consumers without buying into the old "what's good for GM is good for America." It certainly isn't harmful to U.S. consumers for foreign consumers to pay U.S. companies more money.
This sounds almost mercantilist.
At any rate, it is harmful when the cost involved is greater than the benefit. Berne compliance is worse than being in Berne is. As always, it's good to look as the change: was the US doing alright, or poorly, prior to Berne? Are we doing a lot better now, thanks to it? It doesn't look like Berne (and the lead-up to Berne) has made our lives better. But longer terms, withdrawls from the public domain, attacks on our formalities, etc. have made things worse.
I sincerely think that we ought to aim for the least amount of copyright where we still see a healthy amount of creation, distribution, etc. It is very difficult to believe that following Berne will get us there.
But even for the sake of argument, if Berne were in the right direction, I don't think that one size fits all. The standards of Berne can't possibly lead to the greatest net public good for every party to it. Differing conditions in every country indicate to me that each should approach copyright independently. Each country should adopt the laws that are the best for its own people. Provided that they don't discriminate against foreigners, by offering national treatment, what's the downside? True, a US author might have to face that copyright is quite different in country X, but probably so are tastes, distribution systems, the standard of living, business laws, etc. One more factor is no big deal.
In reality, United States Courts discriminate against foreign copyright authors, and do not allow them statutory damages (because the non-US authors don't know about the need to register at the US Copyright Office), yet American producers who file for copyright infringement overseas get the full benefit of the Berne Convention including "national treatment" and statutory damages overseas, because no the country except the US requires local registration. So foreign authors really do not get any "national treatment" under Berne in US Courts. Also, in practice foreign authors can not find US attorneys willing to take the cases on contingency without US registration. In short, US Courts are extremely discriminatory and US judges are hypocritical when it comes to protecting foreign works.
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