International Copyright Janice T. Pilch University of Illinois at Urbana-Champaign Mortenson Center for International Library Programs October 18, 2007.

International Copyright

Janice T. PilchUniversity of Illinois at Urbana-Champaign

Mortenson Center for International Library ProgramsOctober 18, 2007

University of Illinois at Urbana-Champaign

International copyright law

• Not a defined body of law• Operates on basis of relations between nations

– Country of origin– Protecting country

• Operates on principles of: – Territoriality– National treatment– Minimum protection

• Challenges in the digital age: - National laws differ

- Copyright is nation-centric, the Internet is not

• Role of national law—governs use within that nation of eligible foreign works – Whether a work is copyrighted– Copyright term – How a work may be used

• Role of foreign laws - Issues of ownership and transfer - Definition of author

Organizations AdministeringInternational Copyright Treaties

• World Intellectual Property Organization (WIPO)– Berne Convention for the Protection of Literary

and Artistic Works– WIPO Copyright Treaty – WIPO Performances and Phonograms Treaty

• United Nations Educational, Scientific and Cultural Organization (UNESCO)– Universal Copyright Convention

• World Trade Organization (WTO)– Agreement on Trade-Related Aspects of

Intellectual Property Rights (TRIPS)

Terms of treaties and agreements are implemented in national laws

Multilateral conventions and agreements

• Berne Convention (oldest international copyright treaty)

• Universal Copyright Convention (alternative to Berne, Berne has priority if nations belong to both)

• TRIPS Agreement (enforces Berne)• WIPO Copyright Treaty (extends Berne)• WIPO Performances and Phonograms Treaty (extends Berne)• Regional copyright treaties (alternative to Berne)• Bilateral treaties (alternative to Berne)

Berne Convention for the Protection of Literary and Artistic

Works

(September 9, 1886)

– 163 members – Dates of entry of selected nations:

• Brazil – February 9, 1922• Colombia – March 7, 1988• Costa Rica - June 10, 1978• El Salvador – February 19, 1994• Ghana – October 11, 1991

• Japan- July 15, 1899• Korea, Republic of – August 21, 1996• Mexico – June 11, 1967 • Nigeria – September 14, 1993• Pakistan – July 5, 1948• Russian Federation - March 13, 1995• Tanzania – July 25, 1994• Uganda - --• United States – March 1, 1989• Uzbekistan – April 19, 2005• Viet Nam – October 26, 2004

Universal Copyright Convention(September 6, 1952)

- 100 members- Dates of deposit of instrument of

selected nations:

• Brazil – October 13, 1959• Colombia – March 18, 1976• Costa Rica – December 7, 1954• El Salvador – December 29, 1978• Ghana – May 22, 1962• Japan – January 28, 1956• Korea, Republic of – July 1, 1987

• Mexico – February 12, 1957• Nigeria – November 14, 1961• Pakistan – April 28, 1954• Tanzania - --• Uganda - --• United States – December 6, 1954• (Former USSR – February 27, 1973)• Uzbekistan – (February 27, 1973)• VietNam - --

TRIPS Agreement(January 1, 1995)

- 151 members of WTO

• Brazil – January 1, 1995• Colombia – April 30, 1995• Costa Rica - January 1, 1995• El Salvador – May 7, 1995• Ghana - January 1, 1995• Japan - January 1, 1995• Korea, Republic of - January 1, 1995• Mexico - January 1, 1995• Nigeria - January 1, 1995

• Pakistan - January 1, 1995• Russian Federation - --• Tanzania - January 1, 1995• Uganda - January 1, 1995• United States - January 1, 1995• Uzbekistan - --• VietNam – January 11, 2007

Basic aspects of international copyright protection

• Formalities• Criteria for protection

– Originality – Fixation in tangible medium of expression– Minimal creativity– No protection for ideas

• Distinction between intellectual work and material work

• Authorship and ownership• Protected subject matter

• Works not protected by copyright• Moral rights• Economic rights (exclusive rights)• Limitations and exceptions (flexibilities)• Ownership and transfer of rights• Duration of copyright

– Moral rights– Economic rights

Example: U.S. copyright law

• Copyright Act of 1976 (17 United States Code)– Took effect on January 1, 1978 – Has been amended numerous times – http://www.copyright.gov/title17

• Formalities no longer required

• Requirements for copyright protection in U.S.– Originality – Fixation in tangible medium of expression– Minimal creativity

• What is protected in U.S.– Literary works– Musical works, including any accompanying words– Dramatic works, including any accompanying

music– Pantomimes and choreographic works– Pictorial, graphic, and sculptural works

• Works of visual art

– Motion pictures and other audiovisual works– Sound recordings– Architectural works

• What is not protected in U.S. – Ideas, procedures, processes, systems,

methods of operation, concepts, principles, discoveries

– U.S. federal government works– Facts– Works in public domain

• Who owns copyright in U.S.– Authors (initial authorship)– Employers for works made for hire – Assignees (not licensees)

Exclusive rights of copyright holders in U.S.

1. Reproduction [Section 106(1)]2. Preparing a derivative work [Section

106(2)]3. Public distribution [Section 106(3)]4. Public performance [Section 106(4)]5. Public display [Section 106(5)]6. Public performance by means of a

digital audio transmission [Section 106(6)]

Limitations and Exceptions in U.S.

Section 107 (fair use)Section 108 (library and archival

exception)Section 109 (first sale doctrine)Sections 110 and 112 (performance

and display of works for classroom use)

U.S. copyright duration in eligible

foreign works – If published before 1923, in public domain– If published from 1923-1977, 95 years from

date of publication– If created, but not published, before 1978, life

+ 70 or 12/31/2002, whichever is greater– If created before 1978 and published between

1978 and 12/31/2002, life + 70 or 12/31/2047, whichever is greater

– If created from 1978- life + 70 (for works of corporate authorship, works for hire, anonymous and pseudonymous works, the shorter of 95 years from publication or 120 years from creation)

What is in the public domain in the U.S.?

U.S. works:

• No notice (copyright notice was required in U.S. for works published before 3/1/89)

• Failure to renew (renewal was required in U.S. for works published before 1964)

• Expired• No copyright protection available-- works created

by U.S. federal government employees in official capacity, state and local laws and court decisions

• Dedication

Foreign works:

• Expired• No copyright protection available [foreign

government documents and folk works are gray areas, need to distinguish between new works and restored works]

• Dedication

How international works can be copyrighted in U.S.

• If work was first published in U.S. or after U.S. established copyright relations with country of origin, and it is still copyrighted *

• If on date of first publication, one or more of the authors was national or domiciliary of U.S. or a treaty party, or was a stateless person, and it is still copyrighted

• If the work is a pictorial, graphic, or sculptural work incorporated in a building or other structure, or an architectural work, located in U.S. or treaty party, and it is still copyrighted

• If work is first published by United Nations or its specialized agencies, or by Organization of American States, and is still copyrighted

• If the work comes within the scope of a Presidential proclamation (bilateral agreement), and is still copyrighted

• If work was created/published at any time and copyright was restored under terms of Article 18 of Berne Convention and TRIPS Agreement *

Unpublished works are protected regardless of nationality or domicile of author.

17 U.S.C. §104

Steps in a Copyright Determination

• Does a license restrict use of the work? – If yes, you must abide by terms of license.– If no, go to next step.

• Is the work copyrighted in your country today?– What are the essential facts about the work for

copyright assessment?– Was the work created/published after your

country established copyright relations with the country of origin, and is it still copyrighted in your country?

– Could the work have been subject to copyright restoration in your country under terms of the Berne Convention/TRIPS Agreement?

– If the work is not copyrighted, you are free to use it.

– If the work is copyrighted, go to next step.

• Does the use correspond with one or more of the exclusive rights of copyright holders in your country’s copyright law? - If no, then go no further. - If yes, then go to the next step.

• Is the planned activity covered by a library, educational, or other exception?– If yes, you may use the work following the

provisions in the statute.– If no, you should seek permission to use the work.

Essential facts for copyright assessment

• Nature of work• Is the work published or unpublished• Who is/are the author/s• Nationality of author, date of author’s

death, other relevant facts about author’s life

• Is the work anonymous/pseudonymous• Country of origin

– For published works, country where the work was first published

– For unpublished works, country of nationality or habitual residence of the author

• Date of creation or first publication• Whether work is first or later edition• Whether work was first published in

journal, newspaper, etc.• Whether work was published

posthumously• Whether work was simultaneously

published in another country• Whether it is a work for hire/employment

work

Example of a copyright assessment

Russian author Mikhail Bulgakov (1891-1940)• Stories first published in USSR from 1925-27.1) Effective date of restoration in U.S. for RF works: January 1, 19962) Were these works protected in Russian Federation on that date? No. RF

term was life +50 years, author died in 1940, so works expired in RF in 1990.

3) These works not eligible for copyright restoration in U.S.

• Novel “Master i Margarita,” first published 1966-67 in Moscow.

1) Effective date of restoration in U.S. for Russian works: January 1, 19962) Were these works protected in Russia on that date? Yes. On that date

RF term for posthumously published works was 50 years from publication, so novel was protected in Russia through 2017.

3) Because it was protected in RF, it was eligible in U.S. for restoration. U.S. term for a work first published in 1967 is 95 years from publication. The novel is protected in U.S. through 2062.

Date when copyright relations established between U.S. and

selected nations

• Brazil – August 31, 1915• Colombia - December 23, 1936• Costa Rica – October 19, 1899• El Salvador – June 30, 1908• Ghana – August 22, 1962• Japan - April 28, 1956• Korea, Republic of – October 1, 1987• Mexico – February 27, 1896

• Nigeria - February 14, 1962• Pakistan – September 16, 1955• Tanzania – July 25, 1994• Uganda – January 1, 1995• Uzbekistan – May 27, 1973• Viet Nam – December 23, 1998

Copyright restoration in the U.S.

• Consider date on which TRIPS Agreement became effective for U.S. with respect to copyright restoration for eligible works created or published in foreign countries

• Works protected in the country of origin on that date were restored and are protected in the U.S. for the full U.S. term for a work created or published on that date

• If work was not protected in the country of origin on that date, it was not restored in the U.S.

• Works created or published after that date are protected in the U.S. for the full U.S. term

• Does not apply to works simultaneously published in U.S.

Effective date of copyright restoration was January 1, 1996 in the U.S. for the selected

nations:

• Brazil• Colombia • Costa Rica• El Salvador• Ghana• Japan• Korea, Republic of• Mexico• Nigeria• Pakistan• Russian Federation• Tanzania• Uganda

Effective date of copyright restoration in U.S. for other selected nations:

• Uzbekistan – April 19, 2005• Viet Nam – October 26, 2004

• Knowledge of national laws effective on January 1, 1996 or other effective date of copyright restoration is crucial

• Works are restored for full U.S. term

Development of intellectual property

issues from 1990s-present• Move from industrialized economies to

information economies• Issues for developing countries, least

developed countries, and transitional economies

• Development of digital divide• Growth of “content industries”• Digitization and digital resources as a key to

the future• Emphasis on intellectual property enforcement

• Pirate industries and fighting piracy • Threats by content industries on

individuals• View of public interest sector as

competition• Demand for digital access copies

Copyright and Libraries

• Demand for digital access copies– Mass digitization - Library of Congress

National Digital Information Infrastructure and Preservation Program (NDIIPP)

– Google Books Library Project– Open Content Alliance– Individual library projects

Practical Library Copyright Issues

• Interlibrary loan• Direct use copies• Course reserves• Photocopying by library users• Preservation and replacement of published

and unpublished works• Digitization projects

~Requirements can differ for print and digital works

Copyright and Developing Countries

• Article 15(4) introduced in Berne Convention in 1967 takes into consideration desire of developing world for protection of traditional cultural expression

• Appendix to Berne Convention, “Special Provisions Regarding Developing Countries” introduced in 1971

Copyright and Libraries-The future

• Origins of copyright—economic basis, capitalism

• Needs and interests of developed nations• Needs and interests of developing nations• Needs and interests of indigenous people

WIPO Agenda

• WIPO Development Agenda adopted on September 28, 2007, containing 45 proposals in 6 clusters:

• technical assistance and capacity building• norm-setting, flexibilities, public policy and public domain• technology transfer, information and communication technologies and

access to knowledge • assessment, evaluation and impact studies• institutional matters including mandate and governance• other issues, aimed at promotion of technological innovation “to the

mutual advantage of producers and consumers of technological knowledge.”

• Traditional Knowledge (TK), Traditional Cultural Expression (TCE), and Genetic Resources (GR)

• Exceptions and limitations in copyright laws

Seeking copyright permissions

1. Identify copyright holder• Use copyright notice as a starting point• Use any entity associated with author to track

copyright holder• Copyright holder might be author/multiple authors,

publisher, heir or assignee/multiple heirs or assignees

2. Contact a collective rights agency/collective licensing agency to negotiate permissions on behalf of copyright holder, if one exists in country of origin that handles individual permissions --or

3. Contact copyright holder directly

4. Draft permissions letter• Include as much information as possible on

planned use (what, where, when, why, how, how much)

• Relate the use to exclusive rights of copyright holders in U.S. law

5. Negotiate permissions agreement, possibly involving fee

6. Obtain signed permissions agreement

Additional Resources: Websites

• World Intellectual Property Organization (WIPO): http://www.wipo.int/copyright/en/

• WIPO Collection of Laws for Electronic Access: http://www.wipo.int/clea/en/index.jsp

• UNESCO website, including database of national copyright laws:

http://portal.unesco.org/culture/en/ev.php-URL_ID=35170&URL_DO=DO_TOPIC&URL_SECTION=-471.html

http://portal.unesco.org/culture/en/ev.php-URL_ID=14076&URL_DO=DO_TOPIC&URL_SECTION=201.html

• World Trade Organization website, section on intellectual property: http://www.wto.org/english/tratop_e/trips_e/trips_e.htm

• International Federation of Reproduction Rights Organizations:

http://www.ifrro.org/show.aspx?pageid=home• National copyright agencies • Knowledge Ecology International: http://www.keionline.org/• A2K (Access to Knowledge) list by CPTech: http://www.cptech.org/a2k/ • Intellectual Property Watch: http://www.ip-watch.org/index.php?res=800_ff&print=0

Thank you!

Janice T. PilchAssociate Professor of Library AdministrationHead, Slavic and East European AcquisitionsUniversity of Illinois at Urbana-Champaign

E-mail: [email protected]

© Janice T. Pilch 2006, 2007