Copyright Law Chapter 13

The Geneva Convention

- Also known as "The Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of their Phonograms" - Passed in 1971 and became effective in the US March 10, 1974 - Designed to provide international protection against record piracy by recognizing the rights of reproduction, distribution, and importation of sound recordings

The General Agreement on Trade and Tariffs

- Also known as GATT, designed to encourage free international trade - Includes agreement on the intellectual property called the trade related aspects of intellectual property rights (TRIPS) - Member countries must agree to enact copyright laws that give effect to the substantive provisions of the Berne Convention - Does not require the moral rights recognition - Incorporates Berne Convention min of life + 50, OR if not based on life, term must be 50 from pub/creation at least - Most important part of TRIPS = provides for a practical international enforcement system for intellectual property rights, the lack of which has been a major weakness of international treaties. It provides provisions for injunctions, damages, seizure/interdiction at Border - In order to implement TRIPS, the US passed the Uruguay Round Agreements Act (URAA) in 1994. Added to US code that provides performers with protection against unauthorized fixation of performances/reproduction of these, and prevents unauthorized live broadcasts - Restoration of Foreign Copyrights: any copyright that entered the public domain because it was published without notice, because sound recordings were not protected before 2/15/1972, and lack of national eligibility

What multinational treaties are we a part of?

- Berne Convention - The Universal Copyright Convention (UCC) - The Geneva Convention - The North American Free Trade Agreement - The General Agreement on Trade and Tariffs - The WIPO Treaties

The North American Free Trade Agreement

- Entered in 1992 by the US, Canada, and Mexico - Requires copyright protection for computer programs, data compilations, sound recordings - Requires recognition of rental rights for sound recordings - Puts limitations on compulsory licenses and recognition on rights against unauthorized importation of copies of protected works for NAFTA member countries - Detailed provisions on the protection of sound recordings (producers can authorize/prohibit a recording's direct/indirect reproduction, importation of unauthorized copies, first public distribution, commercial rental - Minimum copyright term of 50 years for sound recordings

The Berne Convention

- Held in Berne, Switzerland in 1886. Most countries have gradually become members since inception. Most important Copyright Treaty, has been signed by 136 nations - Administered by World Intellectual Property Organization - Provides greatest degree of protection - Does not include sound recordings due to the common belief that performers are not authors - National Treatment Principle: Each country gives the same amount of protection to foreign works as it does to authors of its own country. - Minimal Standards of Protection: protection must last for at least life + 25, there must be some fair use allowed - Formalities: can not be required as a condition for copyright, but countries can provide for greater benefits if they register (both US and Japan do this) -Exclusive Rights required in protection: 1. reproduction, 2. translation, 3. adaptation, 4. public performance, also requires the recognition of the moral rights of attribution and integrity

Bilateral Treaties

- In 1891, an amendment to the US Copyright Act called the Chace Act allowed the president to extend copyright protection by proclamation to works originating in foreign countries - As a result, the US gradually entered into bilateral treaties (treaties between 2 countries) for copyright - Most were suspended when we joined multinational treaties

The Rome Convention

- Provides higher level of protection than the Geneva convention. However, the US still has not joined

Protections from Geneva/Rome Conventions

- Provides sound recordings with the similar protections that the Berne convention provides to other copyrighted works (national treatment and minimum level of protection) - The main difference between countries who protect SR under copyright vs neighboring rights is international protection. If they're protected under copyright law, they get international protection (because of the national treatment principle). If they're protected under neighboring laws, they have to adhere to the Geneva and Rome conventions

History of US Attempts at International Protection

- US has become a strong advocate for strengthening international copyright protection over the past several decades, but before, the US took a much more isolationist approach - US did not grant protection to foreign works at all until 1891, over 100 years since the first national statute - Over a century ago, we were the most notorious pirate country (mostly to British works) - Charles Dickens spoke out at how his works were used unfairly while on his trip to America - Americans actually scorned him, justifying their unfair use by saying that the US was a developing country and deserved inexpensive access to entertainment

The WIPO Treaties

- WIPO drafted 2 treaties in 1998 designed to balance the interests of creators and owners with those of users/distributors of such works in digital media - Ratified in the US by passing the Digital Millennium Copyright Act in 1998 - WIPO Copyright Treaty: updates the Berne Convention with respect to technological developments. Most importantly: clarifies reproduction right applies in digital environments by providing that the storage of a work in a digital/electronic medium = reproduction - The WIPO Performances and Phonograms Treaty: 1st international treaty to specifically provide protection for sound recordings distributed digitally over computer networks such as the internet - Requires member countries provide 50 years protection after initial fixation - Allow producers to make commercially available over the internet - Greater protection than TRIPS

The Universal Copyright Convention

- We joined September 16, 1955. Main goal was to bring the US into the international copyright community - Similar to Berne, but allows countries to require formalities (you can avoid other countries formality requirements by placing notice on all published copies) - Requires foreign works to receive national treatment. Also requires minimum protection of life + 25 and no protection of sound recordings - Many countries members of both Berne and UCC, but Berne always takes priority in these countries - When US signed Berne, the relevance of the UCC was 1. countries that are members of UCC but not Berne, 2. Works published prior to March 1 1989 that were not simultaneously published in a Berne member country

The US's Membership in the Berne Convention (us being late lol)

- We tend to lag behind in copyright matters - We joined on March 1 1989, due to interest in combatting pirating of US works on an international basis - In order to join, Congress passed the Berne convention Implementation Act of 1988 (made notice optional, and transfers no longer had to be recorded to file a lawsuit) - Full protection given to works created/published after March 1 1989. All works before those subject to the UCC

Countries that Have No Copyright Relations with the United States

Countries like Ethiopia, Afghanistan, Iran, and Iraq

Differences in Copyright Term for Sound Recordings

Problem with the treaty system in copyright protection is inconsistency of protection in different countries. US recognizes SR protection as life + 70, but in many countries it's only 50 years flat. - As a result of inconsistency, record companies lose money from sales/licensing in the EU when these recordings are still commercially viable in the US. - In 2009 it was extended from 50 to 70 in the EU with strong opposition (it wasn't enough time to make a difference in their opinion, but it really can - see the Beatles and Elvis)

Piracy and the Use of Economic Pressure to Enforce Copyright

Under Section 301 of the Trade Act of 1974, the US trade representation can identify/investigate countries that fail to adequately enforce/protect copyrights and to recommend retaliatory trade measures if they don't take measures to increase protection. Each year the US picks certain countries, and puts pressure on them. China is always a huge offender with a piracy rate of 90%. This sucks!! Because they're the biggest country and lots of income is lost