Earlier this month, our Sidebar Saturdays article, Ten Things All Authors Need To Know About Copyright (by Stephen Fishman), generated a question from a reader about international copyright protections. The reader is a self-published United States author who asked if it was necessary to secure copyright protection in every country where her novel will publish.
The Short Answer
Depending on the country in question, the answer is No. Most countries provide copyright protection to foreign creative works under certain conditions via a network of international treaties and conventions. Here is what Sidebar Saturdays contributor Stephen Fishman had to say on the subject:
Unfortunately, there is no single international copyright law that applies in all the countries of the world. Instead, each country has its own copyright law that operates within its own borders. Thus, Canadian copyright law governs the copyright status of works published in Canada, just as United States copyright law governs works published in the U.S.
However, although there is no such thing as a single international copyright law, international treaties (that almost all the nations of the world have agreed to) establish international minimum standards of copyright protection that each nation must afford its citizens through its own copyright laws. Moreover, this same degree of protection must be given by each nation to foreigners.
By far the most important international copyright treaty is the Berne Convention [see below for an explanation of three other international copyright treaties and conventions]. Almost all the countries of the world have joined the Berne Convention (named for the Swiss city in which is was first negotiated). The United States joined Berne on March 1, 1989. Berne requires its members to protect “literary and artistic works” which are broadly defined to include “every production in the literary, scientific and artistic domain.”
The cornerstone of the Berne Convention is the principle of national treatment. National treatment means that under a nation’s laws, a foreigner enjoys no lesser rights and benefits than a citizen of that nation receives. For example, a United States work for which copyright enforcement is sought in Germany would be treated under German law exactly as if it were a German work.
The Berne Convention also mandates that copyright protection not be conditioned on compliance with copyright formalities outside a work’s country of origin, such as placing a copyright notice on published works or deposit and registration of a work with a national copyright agency such as the United States Copyright Office. Thus, you do not have to register your work in any foreign country to receive copyright protection in that country. Indeed, few countries other than the U.S. have any form of copyright registration. However, foreigners who do register their work in the U.S. do receive some important legal benefits, principally the ability to obtain statutory damages if they file a copyright infringement suit in the U.S.
There are only a handful of countries that have not signed the Berne Convention or another copyright treaty [see below] and with which the U.S. does not have copyright relations. These are Eritrea, Ethiopia, Iraq, Iran, and San Marino. The copyright status of some other countries is unclear; these are Nauru, Palau, Somalia, South Sudan, and Kiribati. You probably don’t want to publish your work in these countries.
Guidelines for International Copyright Protection
A. Copyright protection outside the U.S. for creative works by U.S. citizens
For writers who are U.S. citizens seeking copyright protection abroad, here is what you need to know:
- In the U.S., copyright protection for a creative work by a U.S. citizen starts automatically the moment anything is written. While you are not required to place a copyright notice on your published work, or register that work with the U.S. Copyright Office, doing both provides legal benefits in the U.S. (see Stephen Fishman’s previous article for more detail).
- Because of the mutual recognition and protection of copyrights provided by the network of international conventions and treaties, there is little benefit to obtaining separate and independent copyrights in each country where the work is to be published. International protection is automatically extended once the U.S. work is created.
- Even though an author is assured of protection for their works in another country, enforcing it usually means suing for infringement in that foreign country which of course can be expensive. As noted above, copyright protection is national in scope and limited to the remedies (like monetary damages and injunctions) provided by the country where the infringement has occurred. If you find someone has infringed your work outside the U.S., consult a qualified a lawyer familiar with the copyright laws of the country in question.
- If the country does not belong to the Berne Convention or one of the other treaties and conventions below, be aware that copyright protections may not be available in those countries. As Stephen mentioned above, maybe publication in these countries is not worth it due to non-existent or low-level copyright protections.
B. Copyright protection within the U.S. for creative works by foreign citizens
For writers who are foreign citizens and seeking copyright protection within the U.S., here is what you need to know:
- If you published your creative work in a foreign country that is signatory to one of the network of international treaties and conventions (Berne Convention or one of the others listed below), your creative work is automatically entitled to copyright protection in the U.S. If you are unsure if your country has signed and ratified one or more of the international copyright treaties and conventions, check out the link below for a handy list of countries which are members to the various treaties and conventions that provide international copyright protection.
- If you are a citizen or resident from a country that is not a member to one or more of the international copyright treaties and conventions, then creative works published there are generally not entitled to copyright protection in the U.S. unless one of the following requirements are met: a) the creative work is first published in the U.S., or b) the creative work is first published in a treaty country. Under U.S. copyright law, first published in the U.S. or first published in a treaty country is defined as “before or within thirty days after it was published in the country not party to any of the international copyright treaties or conventions.”
- If your work is unpublished, do not fret. All unpublished works are entitled to copyright protection, regardless of the nationality or domicile of the author (see this pdf from the U.S. Copyright Office for more information).
- A non-U.S. citizen can obtain copyright protection in the U.S. for a work published abroad in a treaty country without placing a copyright notice on their published work or registering it with the U.S. Copyright Office.
- Unlike U.S. citizens, a non-U.S. citizen need not comply with the requirement of placing a copyright notice on their work published abroad or registering it with the U.S. Copyright Office before filing a lawsuit for copyright infringement. However, it is always prudent for foreign authors to put a copyright notice on their published work and file for a U.S. copyright if they want to take advantage of the additional benefits like statutory damages and attorney’s fees (versus actual damages which sometimes can be hard to prove in court).
While the Berne Convention is by far the most important international copyright treaty, there are other treaties and conventions in the mix worth mentioning (get ready for load of acronyms).
- The Universal Copyright Convention (UCC) is an international copyright treaty adopted in 1952 in Geneva as an alternative for countries who did not want to join the Berne Convention but still wanted to participate in international copyright protections. The U.S. joined the UCC in 1955. For the most part, copyright protections via the UCC are outdated because most countries belong to the Berne Convention.
- The General Agreement on Tariffs and Trade (GATT) promotes international trade by reducing or eliminating trade barriers between countries. GATT includes the Trade Related Aspects of Intellectual Property Rights (TRIPS), which is an international agreement between members of the World Trade Organization (WTO) and requires minimal standards for protecting various forms of intellectual property. In particular, TRIPS requires WTO countries to provide copyright laws that follow the majority of the Berne Convention copyright protections.
- WIPO Copyright Treaty (WCT) – WIPO, which stands for World Intellectual Property Organization, created the WCT in 1996 to extend copyright protection from the Berne and TRIPS provisions to protect digital works and computer software. The WCT requires all countries that are members to the treaty to provide copyright protections that follow the Berne Convention protections, and extend that protection to works in digital form.
Here is a handy chart should you need to reference which country is member of which treaty and convention. Some countries that are not parties to the Berne Convention or one of the above copyright treaties and conventions may be parties to bilateral trade agreements, i.e. on a country-to-country basis.
Next week: Click-in for an article about licensing English-language or translation rights to international publishers.
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