Friday, May 04, 2007

Section 104 and the Praetorian Guard

The praetorians were bodyguards for the Roman emperors. As noted by wikipedia: "With the right amount of money, or at will, they assassinated emperors, bullied their own prefects, or turned on the people of Rome. In 41 Caligula was killed by conspirators from the senatorial class and from the Guard. The Praetorians placed Claudius on the throne, daring the Senate to oppose their decision." (See this wikipedia link). What does this have to do with copyright, and particular Section 104, which concerns national eligibility? In response to an earlier posting on Section 104A and GATT restoration, I have had a back-and-forth with a European commentator about Berne and the rule of the shorter term. I had noted that the United States does not apply the rule of the shorter term found in Berne and since Berne is not self-executing in the U.S., U.S. courts are to apply title 17 to U.S. and foreign citizens alike for term purposes. (Section 104A(h)(6)(B) denies restoration if the work is in the pubic domain in the country of origin throgh expiration of term). Here was the reply:

All around the world, Berne convention is not self-executing in national legislation, and national legislatures specify national terms of protection, just like in the US. But the syllogism is not applied: unless otherwise specified, the rule of the shorter term (Berne convention, art. 7-8) is used as a jurisprudential interpretation for material first published abroad: when the term of protection has expired in the country of origin, it is not protected by national law, unless otherwise specified (This is interpreted as the national intention, since interpreting it the other way around would make the shorter term clause useless).

There is indeed 17 U.S.C. 104-c that may be interpreted as a specific rule on content and duration, but on the other hand, it can also be interpreted as simply being the US transposition of Berne convention art. 5-2: given the provision made by the rule of the shorter term, its effect on the protection term is ambiguous. I cannot understand why the worldwide jurisprudential interpretation should be different in the U.S.: is it a pretorian interpretation, a general principle, or a specific law?

I don't know what a praetorian interpretation is, but perhaps it is being suggested that the U.S. rules on term represent a rogue element, a violent attack on the corpus of international copyright jurisprudence. Given our current Administration it is easy to appreciate why Europeans might be led to think this is another example of "You're either with us or you're against us," but the facts are quite different.

To begin with, Section 104 was drafted before we joined Berne and thus cannot be said to represent an attempt to be different from any international consensus on the rule of the shorter term. Section 104 is, moreover, consistent with the way the U.S. Congress has always dealt with term: we have always applied the same term of protection for all works and all authors: its a one-size fits all approach. (Sound recordings representing the most prominent example of U.S. law being more generous than foreign law). This of course doesn't excuse Congress from addressing the rule of the shorter term in its Berne implementing legislation. Article 7(8) states: "In any case, the term shall be governed by the legislation of the country where protection is claimed; however, unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work." As I interpret this, Article 7(8) doesn't require any country to apply the rule of the shorter term; countries are free to apply the domestic term to works of foreign origin (so long as it is at least life plus 50). That's what the U.S. has done. Section 104 assimilates foreign citizens, and, in Section 302 and 303 grants them the same term as U.S. authors. I don't see how this makes Article 7(8) "useless," since that provision gives countries a choice. If Article 7(8) mandated application of rule of the shorter term, then I could see criticism of the U.S. for failing to comply with a treaty obligation, but that's not the case, and Artilce 7(8) wod read differntly too, something like: "In all cases, the term shall not exceed the term fixed in the country of origin of the work." And, it should not be overlooked that in every case where the rule of the shorter term could be applied, because it isn't, the U.S. approach results in foreign works being granted a longer term than they get in their country of origin.

As for the question of courts interpreting national intention by applying the rule of the shorter term, this is where non-Berne self-execution comes into play. In the United States, national intention is usually grounded in a statute. Since U.S. courts have been epxressly told by the U.S. Congress not to apply Berne, but to apply title 17, that's what they do, and a plain reading of title 17 leads to granting foreign and U.S. works the same term. It is purely a question of statutory interpretation: no U.S. court, reading the plain words of Section 104 would think that it embodies the rule of the shorter term; contrary to the European commentator, there is no way to read Section 104 and think it carves out any special rules on duration for foreign works; that foreign courts may do so must come from a different interpretative tradition, that of reading a treaty into domestic law. (I would add that reading a treaty into domestic law and making the treaty self-executing is a very fine line). U.S. courts were, however, told in the Berne implementing legislation not to do that. In short, my answer is that the U.S. approach is consistent with international law, namely the choice given countries in Article 7(8) to legislate on the issue in domestic law. That other countries, either directly, or through court interpretations, have chosen differently, does not make us praetorians.

It is worth pointing out that in the one instance in which a court could write on a blank slate -- the New York Court of Appeals Capitol Records v. Naxos case -- in deciding, whether under state law, pre-1972 sound recordings would have the rule of the shorter term applied , the court held it would not apply the rule of the shorter term. So for us, Rubicon is a wine, not a river.


Anonymous said...

Thank you for this answer.

We old Europeans indulge in history: before being these ill-famed rogues, the praetorian guard had a noble
role under the roman republic: to be the protection of the praetor, a Roman magistrate charged with the administration of justice (Wikipedia will have to be completed, see Perseus dictionary). Their official role was then to guarantee the independence of justice. This is why the "praetorian" term is used -in French, indeed- to qualify something linked to justice, specifically a legal conception based on de facto doctrine and jurisprudential practice. OK, if it was a Gallicism, this will be my gift to English legal vocabulary ;o)

While studying this question, I went through this very interesting paper of yours, “Choice of law and international copyright”. I think most of the arguments presented on Itar-Tass v. Russian Kurier in section III (subject matter) and the discussion of the Universal Copyright Convention (UCC) and its rule of shorter term, in subsection B (National treatment) would in fact support my initial approach: copyright is a droit acquis that “may be said to vest initially in one country, and then to be recognized in others according to treaty obligations”. And “those arguing that the droit independent approach should also be applied to copyright are heavily influenced by […] the late entry of the United States into the international copyright community and the resulting unfamiliarity with the copyright conventions”. The question is: in that case, why should the USA consider that copyright protection term is governed by national (US) laws? The reference made to UCC in your paper has been the key explanation I was looking for. As I understand it:

A* Since 1950, the USA has been working in the UCC context, where the rule for shorter terms is: “The duration of protection of a work shall be governed ... by the law of the Contracting State in which protection is claimed” and “No Contracting State shall be obliged to grant protection to a work for a period longer...”. For half a century, the syllogism has been: * Rule of shorter term is possible, but must be explicit. * No shorter term clause is made in US legislation. * Therefore, “the U.S. doesn't apply the rule of the shorter term.”. Your explanation in the above-mentioned paper follows this approach: “The United States, by failing to enact legislation adopting the rule of the shorter term, grants to all authors the same term of protection; other countries have enacted the rule”.

B* The Berne convention (art. 7.8) has it the other way around: “unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work.”. In other word, under the Berne convention, the syllogism is: * Rule of shorter term is implicit. * No shorter term exception clause is made in US legislation. * Therefore, “the U.S. applies the rule of the shorter term." This is what the EEC 93/98 directive explicitly states in art. 7-1.

Historically, the UCC was developed as a down-graded alternative to Berne, but it has lost its significance with the TRIPS agreement of the WTO. In some distant future, the UCC context may therefore vanish and be replaced by the Berne convention. In that case, the jurisprudential context will switch to that of Berne convention, with a possible conclusion that “rule of shorter term” applies in the USA after all. In the meantime, there will be a juridical risk on the corresponding material: it may of course be argued that in the new context, the USA should follow the shorter term rule, but in practice, the judges may not be convinced anyway. The fact is (if I understand it correctly), the USC has neither shorter clause exception, nor shorter clause dismissal. Since the USA drafted section 104 before joining the Berne convention, this UCC context has logically been interpreted in US courts as a “shorter rule exclusion”. Right now, the USA is both compliant to UCC and Berne Treaty, but a choice has to be made: the shorter term rule cannot both be implicitly applicable and non-applicable... There is no rule of shorter term, not because of law or general legal principle, but simply because this is the way things are judged in the USA. This has to do with history and justice, after all: the “praetorian practice” has it this way.

William Patry said...

Dear Anonymous, thanks you for your very insightful and historically rich comment: as someone whose lineage goes back to Normandy in the 900s (see -- I am happy to learn from old European, especially to drink its wines (I had a 1997 La Mondotte and a 2001 DY'quem last night) and eat its cheeses. I share your preference for droit acquis (and I have an updated version of the choice of law paper if you like), and I appreciate the textual differences between the UCC and Berne on the rule of the shorter term that you point out.
I would assume you agree that the U.S. does not apply the rule of the shorter term (outside of 104A restoration). The real questions then are why and is this consistent with Berne. As to why, I think it is merely tradition: traditionally we have used a one-size-fits-all for term: even for photographs when they were first protected in 1870, and sound recordings in 1971. We also have traditionally not given foreign works a different term, before we joined the UCC and Berne. So from our perspective, that's just the way we have done things. I have never understood the historic discrimination against photographs for term, so I don't think the U.S. shold be defensive about our egalitarianism; plus it has spared us the rather pathetic pleading going on right now in the UK by dinosaur rockers.
As for compatibility with Berne, I think there are two choices (1) we are incompatible because we didn't say in express terms "we do not apply the rule of the shorter term;" or (2) we are compatible because we are not required to aply the rule of the shorter term, and Section 104, by assimilating foreigners to U.S. authors, does grant them the same term. Section 104 thus is legislation to the contrary as permitted by Article 7(8). I favor two because I don;t think Article 7(8) requires such express disavowal of the rule of the shorter term.

Anonymous said...

This issue is becoming every year more prominent as more post-1923 works become public domain in the UK and Canada. There is an interesting provision in Chapter 1 of Title 17 which could be apply to some websites hosting affected works. Section 108(h) provides for the reproduction and display of works in the last 20 years of their copyright term by a non-profit educational institution functioning as a library or archive. But it includes some conditions which are not easy to interpret.

The US Copyright Office Report on Orphan Works said the following: Section 108 relies expressly on the concept of reasonableness: the terms “reasonable investigation” and “reasonable price” are central to its operation. However, section 108(h) defines neither of these terms. Similarly, it does not define the important term “normal commercial exploitation.” We could find no case interpreting these terms in section 108(h) to date.

Do you have any advice on how to interpt Section 108(h)? In particular, regarding works which are public domain in the country of first publication and in the last 20 years of their copyright in the US.

Thos said...

I may misunderstand the issue here, in which case apologies to Anonymous, but it seems to me that the history contradicts, rather than supports him. First, until the Directive imposed it, EC member states did not uniformly assume or apply the comparison of terms test, yet all were members of Bern. The UK is an example. One should also observe that even today Germany, for example, does not apply the rule to its copyright relations with the USA - as contemplated by Art. 7(3) of the Term Directive.

Second, to the extent there was a worldwide interpretation, it was that expressed as long ago as 1963, where the potential error of inferring that the rule was in some sense mandatory in the absence of an explicit exception was identified (see Records of the IP Conference of Stockholm, page 109 (1971)). As Schricker observes: "[Arts 7(8) Bern and IV(4)(a) UCC] ermöglichen den Schutzfristenvergleich, ohne ihn aber verbindlich anzuordnen" (Ed. 2, page 1021). There is no presumption either way as a result of the Bern wording, and it is one adopted to similar effect in, e.g., the IP Enforcement Directive (see Art. 4).

In any case, while a US court would no doubt in a case of ambiguity strive to interpret legislation in a manner consistent with the US's international obligations, there is no ambiguity here to clarify. Also, s. 104(c) gives a clear warning against extending the Act's explicit meaning by reference to the Convention.

Lupo said...

Thos wrote that in 1963 "the potential error of inferring that the rule was in some sense mandatory in the absence of an explicit exception was identified (see Records of the IP Conference of Stockholm, page 109 (1971))." Indeed, it appears that Anonymous is interpreting §7(8) BC in that way. What do the records of the Stockholm conference say on that issue? Could you summarize or post an excerpt? As a layperson, I unfortunately have no access to that report (not even through my university library). From reading just the English and French texts of the BC, it's not evident to me why this interpretation should be wrong in general. (Though I agree that the rule does not apply in the U.S. because 17 USC 104(c) does "provide otherwise" and furthermore the BC is not self-executing in the U.S. (Berne Convention Implementation Act of 1988, Pub. L. 100-568, section 2).)

Did the U.S. legislators even consider the question of whether or not they should include a rule of the shorter term in the U.S. copyright law? I haven't found anything on that issue in the House or Senate reports and statements on the BCIA.

And given that the U.S. does not, in general, follow this rule, why was a similar rule—albeit with a fixed date, January 1, 1996 in most cases—included in 17 USC 104A? After all, there would have been the option of applying the U.S. copyright terms indiscriminately in all cases as per the independence of protection.