International Copyright and
Library Practices
Janice T. Pilch
Copyright and Licensing Librarian
Rutgers University Libraries
ALA Office for Information Technology Policy
Copyright Education Subcommittee
August 7, 2014
International copyright law
 Not a defined body of law
 International copyright treaties and agreements are
implemented in national laws
 System of relations between countries
 Country of origin
 Protecting country
 Operates on principles of:
 Territoriality
 National treatment
 Minimum protection
International copyright law
 Treaties take effect in national laws
 National law determines:
 Whether a work is copyrighted in that country
 Copyright term
 How a work may be used
 Challenges in the digital age
 National copyright laws vary widely
 Copyright is nation-centric, the Internet is not
 Cross-border distribution is not well developed
International treaties, conventions,
and agreements
 Bilateral treaties and agreements
 Regional copyright treaties and agreements, for example:
 European Union directives
 Cartagena Agreement (1993)–Andean Community-Decision No. 351
 World Intellectual Property Organization treaties (26), for
example:
 Berne Convention for the Protection of Literary and
Artistic Works (1886)
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U.S. entry into force March 1, 1989
International treaties, conventions,
and agreements
 WIPO Copyright Treaty (1996)
 U.S. entry into force March 6, 2002
 WIPO Performances and Phonograms Treaty (1996)
 U.S. entry into force May 20, 2002
 Beijing Treaty on Audiovisual Performances (2012)
 Signed but not yet ratified by U.S. [not yet in force]
 Marrakesh Treaty to Facilitate Access to Published
Works for Persons Who Are Blind, Visually Impaired, or
Otherwise Print Disabled (2013)
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Signed but not yet ratified by U.S. [not yet in force]
International treaties, conventions,
and agreements
 United Nations Educational, Scientific and
Cultural Organization (UNESCO)
 Universal Copyright Convention (1952)
 U.S. entry into force September 16, 1955
Trade agreements
 World Trade Organization (WTO)
 Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS) (1995)
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U.S. entered January 1, 1995
International treaties, conventions,
and agreements
 Plurilateral/multilateral trade agreements, for
example:
 Anti-Counterfeiting Trade Agreement (unsuccessful)
 Trans-Pacific Partnership Agreement (in negotiation)
 Trans-Atlantic Trade and Investment Partnership (in
negotiation)
 Free trade agreements- bilateral/plurilateral, for
example:
 North American Free Trade Agreement (1994)
 U.S.-Australia Free Trade Agreement (2004)
National copyright law
• Nations have flexibility in crafting their laws
• Copyright Act of 1976 (17 United States Code),
http://www.copyright.gov/title17
Common elements define the structure and content
of national copyright laws
Formalities
 Copyright exists upon creation of the work
 Berne Convention prohibits as a condition of protection
formalities such as registration, legal deposit, copyright
notice
• Copyright formalities existed in the past in the U.S. Since
March 1, 1989 copyright notice no longer required in U.S.
on published works.
Criteria for protection
 Originality
 Minimal creativity
 In some countries, fixation in tangible medium of expression
 U.S. copyright law §102(a)
 No protection for ideas, procedures, methods of operation or
mathematical concepts
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U.S. copyright law §102(b)
 Copyright protects intellectual works
 U.S. copyright law §101
Definition of literary works and audiovisual works
“works... regardless of the nature of the material objects… in which
they [the works] are embodied.”
Authorship, ownership, transfer of rights
 Creator of a work is generally recognized as the author and
initial owner of copyright, U.S. copyright law, Chapter 2
 Copyright ownership of employment works
 In some countries, employers
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U.S. copyright law §101, “work made for hire”
 In some countries, employees as authors
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Works of joint authorship
Collective works
Compilations
Inheritance, assignment, transfer of copyright governed by
domestic/state laws covering legal succession, trusts and
estates, property; contract law in respective jurisdictions
Protected subject matter
 Types of works protected by copyright:
 Literary, artistic, dramatic, and musical works; works
representing later technological development, such as
photographs, films, sound recordings, and computer
programs (software)
 Collective works
 Compilations, including databases
Protected subject matter
 U.S. copyright law, §102(a)
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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
• U.S. sound recordings fixed before February 15, 1972 are
protected by state law; federal law takes precedence in 2067
Architectural works- plans and constructions
Unprotected subject matter
 Common types of unprotected subject matter:
 “News of the day” and miscellaneous facts having the
character of mere items of press information
 Government documents; works of a legislative,
administrative, and legal nature
 Works of folklore/traditional cultural expression
 U.S. copyright law:
 No protection for any idea, procedure, process, system, method of operation,
concept, principle, or discovery, regardless of the form in which it is
described, explained, illustrated, or embodied in such work, §102(b)
 U.S. government works not protected, §105
Moral rights
 Moral rights are rights protect the author’s personality and
reputation, and the integrity of the work
 Right of paternity/ attribution
 Right of integrity
 Right of divulgation
 Right of retraction
 In U.S. right of attribution and right of integrity granted to works of
visual art in U.S. in §106A
 For other types of works moral rights are protected in U.S. under the
state regimes of defamation, misappropriation, and unfair competition
 Stronger moral rights protection in other countries
 Berne Art. 6bis(1) mandates rights of paternity and integrity
Economic rights
 Rights granted for purpose of benefiting economically from
use of a work
 Also known as exclusive rights, proprietary rights, property
rights, or patrimonial rights
 Exclusive rights in U.S. copyright law, §106:
• Reproduction
• Derivative works
• Public distribution
• Public performance
• Public display
• Public performance by means of digital audio transmission
Economic rights in the Berne Convention
 Right of translation (Article 8)
 Right of reproduction (Article 9)
 Right of public performance and communication to the public of a
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performance for authors of dramatic, dramatico-musical and musical
works (Article 11)
Right for broadcasting and other wireless communications, and public
communication of the broadcast (Article 11bis)
Right of public recitation for authors of literary works (Article 11ter)
Right of adaptation, arrangement and other alteration (Article 12)
Right of cinematographic adaptation and reproduction; distribution,
public performance and public communication of such a work; and
adaptation of a cinematographic production (Article 14)
Droit de suite, or the artist’s resale right, subject to reciprocal
protection (Article 14ter)
Additional economic rights in the WIPO
Copyright Treaty
 Distribution right (Article 6)
 Rental right with respect to computer programs and cinematographic
works and works embodied in phonograms (Article 7)
 Right of communication to the public by wire or wireless means,
including the making available to the public of works in such a way
that members of the public may access these works from a place and at
a time individually chosen by them (Article 8)
 Requires member states to protect against circumvention of encryption
technologies for copyrighted works and against interference with
digital rights management systems (Article 11)
Duration of copyright
 Berne Convention requires a general term of protection of
life of the author plus fifty years for most types of works
 Dates from the 1908 Berlin revision
 Became an obligation in the Brussels revision of 1948
 Nations may adopt higher levels of protection
 U.S copyright law, Chapter 3
Types of limitations and exceptions
 Personal or private use of works
 Reproduction of works in Braille or by other special means
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for blind and visually disabled persons
Use of works by libraries and archives
Use of works by educational institutions for classroom
instruction and teaching
Scholarship, study, research
Quotation from published works- Berne Art. 10(1)
Public uses such as comment, criticism, parody, satire
Fair use/fair dealing/use according to fair practice
Types of limitations and exceptions
 Specific limitations and exceptions for the broadcast media
 No protection for “news of the day or to miscellaneous facts
having the character of mere items of press information”Berne Art. 2(8)
 For official texts of a legislative, administrative, and legal
nature and translations of them
 For political speeches and speeches delivered in the course
of legal proceedings
 For musical performances in religious worship, military
band concerts, charitable events, and concerts celebrating
public festivals and holidays … and more …
U.S. copyright law §§107-122
 Particular relevance to libraries and archives:
 Section 107 (Fair use)
 Section 108 (Reproduction and distribution by libraries
and archives)
 Section 109 (First sale doctrine and public display)
 Sections 110 and 112 (Performance and display of works
for classroom use)
 Section 121 (Reproduction for blind or other people with
disabilities)
Practical implications of international
copyright protection
 Is a particular foreign work protected in the U.S. today?
 Digitization projects
 Using foreign works in scholarly publications
 Helpful documents:
 U.S. Copyright Office, Circular 38a,
http://www.copyright.gov/circs/circ38a.pdf
 Laura Gasaway, When U.S. Works Pass into the Public Domain,
http://www.unc.edu/~unclng/public-d.htm
 Peter Hirtle, Copyright Term and the Public Domain in the
United States,
https://copyright.cornell.edu/resources/publicdomain.cfm
Essential facts for copyright assessment
Whether the work is published or unpublished
Date of creation or first publication
Whether the work is a first edition or subsequent edition
Place of first publication
Whether work was first published simultaneously in
another country
 Country of origin
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 For published works, country where the work was first published
 For unpublished works, country of nationality or habitual
residence of the author
 Who is/are the author/s
Essential facts for copyright assessment
 Nationality of author, date of author’s death, other relevant
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facts about author’s life
Whether the work is anonymous/pseudonymous
Whether the work was first published posthumously
The type of work according to definitions in U.S. law and
the law of the country of origin
Whether the work is a compilation or a derivative work
Whether the work is a “work for hire” / employment work
Whether the work was first published with notice and
renewed in the U.S.
Whether the work was first published lawfully
How foreign works may be copyrighted
in U.S.
U.S. copyright law §104:
 If on date of first publication, one or more of the authors
was a national or domiciliary of U.S. or a treaty party, or
was a stateless person
 If the work was first published in the U.S. or in a foreign
nation that, on the date of first publication, was a treaty
party
 If the work is a sound recording first fixed in a treaty party
 If the work is a pictorial, graphic, or sculptural work
incorporated in a building or other structure, or an
architectural work, located in the U.S. or in a treaty party
How foreign works may be copyrighted
in U.S.
 If work was first published by United Nations or its
specialized agencies, or by the Organization of American
States
 If the work comes within the scope of a Presidential
proclamation
 Unpublished works are protected regardless of nationality
or domicile of author
 If work was created/published at any time and copyright
was restored under terms of Article 18 of Berne Convention
under URAA implementing TRIPS
Scenario 1: Work first published
in a treaty party
 If the work was first published in the U.S. or in a foreign
nation that, on the date of first publication, was a treaty party.
You would like to determine the copyright status of the novel
by Hermann Hesse, Das Glasperlenspiel (1943)
Scenario 1: Work first published
in a treaty party
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Date of creation or first publication? 1943
First edition or subsequent edition? First
Place of first publication: Switzerland
First published simultaneously in another country? No
Country of origin: Switzerland
 Date when U.S copyright relations established with Switzerland:
July 1, 1891
 Was the work first published with notice and renewed in the U.S.
Copyright Office? Yes
 How long is the original work protected in the U.S.?
95 years from date of publication, through 2038
Copyright renewal record
Stanford Copyright Renewal Database Record
Long Record
Title: Das Glasperlenspiel
Author: HESSE, HERMANN
Registration Date 18Nov43
Renewal Date 29Apr71
Registration Number AF31675
Renewal Id R504979
Renewing Entity Heiner Hesse (C)
Old Class Code
Scenario 2: Copyright restoration
 On effective date, the work has not expired in source country but is in
the public domain in U.S. due to:
 noncompliance with formalities
 lack of subject matter protection in the case of sound recordings
fixed before February 15, 1972; or
 lack of national eligibility
 Your library would like to digitize a copy of Russian author
Mikhail Bulgakov’s novel Master i Margarita. You have a
1999 edition. Is the work copyrighted in the U.S.?
 Bulgakov, Mikhail (1891-1940), Master i Margarita, first
published 1966-67 in journal Moskva in Moscow.
Scenario 2: Copyright restoration
1)
2)
3)
4)
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 that have not fallen into the public domain in the
country of origin “through the expiry of the term of
protection” on that date were restored in U.S. and are
protected 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 is not currently protected in the U.S.
Works created or published after that date are protected
in the U.S. for the full U.S. term.
Scenario 2: Copyright restoration
 Date on which TRIPS Agreement became effective for U.S.
with respect to eligible foreign works is January 1, 1996 or
the earlier of the dates after January 1, 1996 that the other
nation
 joined the Berne Convention, or
 entered the WTO, or
 adhered to the 1996 WIPO Copyright Treaty or the 1996 WIPO
Performances and Phonograms Treaty (for sound recordings), or
 was subject to a presidential proclamation that extended restored
protection. 17 U.S.C. §104a.
 U.S. joined Berne Convention on March 1, 1989
 Russian Federation joined Berne Convention on March 13, 1995
 Effective date of copyright restoration was January 1, 1996 for the
U.S. with respect to Russian Federation
Scenario 2: Copyright restoration
 Was this work protected in Russia on that date?
 Yes. 1993 Russian copyright law established retroactive 50-year term.
 On January 1, 1996 the RF term for posthumously published works
was 50 years from date of publication. Novel was protected in Russia
through 2016-2017. Because it was protected in RF, it was eligible in
U.S. for restoration.
 U.S. term for a work first published in 1966-1967 is 95
years from publication. The novel is protected in U.S.
through 2061-2062.
Scenario 3: Unpublished work
 Unpublished photographs of a photographer in Iran
 Protected by copyright in the U.S.
 Unpublished works are protected regardless of
nationality or domicile of author
 If the photos are published in Iran without
simultaneous publication in a treaty party, they lose
copyright protection in the U.S.
Scenario 4: Sound recording first fixed in
treaty party
 Sound recording released in 1980 in the U.K.
 U.S. copyright relations with U.K. since July 1, 1891
 Protected in U.S. for 70 years after death of author, or if work of
corporate authorship, the shorter of 95 years from publication, or
120 years from creation
Scenario 5: Copyright restoration of
sound recording
 Pre-1972 sound recording- released in 1970 in the U.K.
 Effective date of restoration for U.K. was January 1, 1996
 On that date it was protected in the U.K. (under a 50-year term)
 Foreign copyright restored in U.S.
 U.S. term for a work first published in 1970 is 95 years from
publication.
 The sound recording is protected in U.S. through 2065.
Practicality of determining copyright status
 Due diligence involves a case-by-case analysis and legal
expertise
 Not always feasible to determine status of individual works
 Mass identification of copyright status
 Hathi Trust cut-off date for published works of 1870
See http://www.hathitrust.org/rights_database
 Google cut-off date of 140 years from publication outside the U.S.
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 The Durationator™, http://www.durationator.com/
 Using foreign works in scholarly publications
 Proving public domain status solves the problem of permissions
 Publishers usually welcome due diligence
 Most common obstacle: missing essential facts
International interlibrary loan and
document delivery
Trusted, well-established practices
 Each supplying library should be aware of, and work within, the
copyright laws of its own country
 The supplying library should inform the requesting library of any
copyright restrictions that might apply
 IFLA, International Resource Sharing and Document Delivery:
Principles and Guidelines for Procedure,
http://www.ifla.org/publications/international-resource-sharing-anddocument-delivery-principles-and-guidelines-for-proc
 Due regard to the copyright laws of the borrowing country as well
 Proposed WIPO library treaty an attempt to harmonize library
exceptions and allow cross-border uses, similar to Marrakesh
Treaty
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Current developments in international
copyright at WIPO
 WIPO Standing Committee on Copyright and Related
Rights
 Agenda on copyright limitations and exceptions for blind
and visually impaired persons/ persons with print
disabilities; libraries and archives; and education
 Marrakesh Treaty to Facilitate Access to Published Works for
Persons Who Are Blind, Visually Impaired, or Otherwise Print
Disabled
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Adopted at a diplomatic conference in Marrakesh, June 27, 2013
Current developments in international
copyright at WIPO
 Working Document Containing Comments on and Textual
Suggestions towards an Appropriate International Legal
Instrument (In Whatever Form) on Exceptions and
Limitations for Libraries and Archives (SCCR/26/3)
 Based on Treaty Proposal on Copyright Limitations and Exceptions
for Libraries and Archives by IFLA, EIFL, and Corporación
Innovarte, http://www.ifla.org/publications/treaty-proposal-oncopyright-limitations-and-exceptions-for-libraries-and-archives
 11 topic clusters
 Final recommendations were expected to WIPO General Assembly
by SCCR/28 session (June/July 2014)
Current developments in international
copyright at WIPO
 Provisional Working Document towards an Appropriate
International Legal Instrument (In Whatever Form) on
Limitations and Exceptions for Educational, Teaching and
Research Institutions and Persons with Other Disabilities
Containing Comments and Textual Suggestions
(SCCR/26/4 Prov.)
 Final recommendations were originally expected to WIPO General
Assembly by SCCR/30 session (June/July 2015)
International landscape: Reform of national
copyright laws
• January 15, 2013. European Commission presents new priorities for
Digital Agenda for Europe 2013-2014 (#5- Update EU's Copyright
Framework), http://ec.europa.eu/digital-agenda/
• October 2013. Review of EU Copyright Framework, follows from
Intellectual Property Strategy “A Single Market for Intellectual Property
Rights,” published on May 24, 2011
• November 2013. Failure of "Licenses for Europe" 2013 stakeholder
dialogue underlines need for reform of the EU copyright framework,
http://ec.europa.eu/licences-for-europe-dialogue/
• December 5, 2013-March 5, 2014. Public Consultation on the Review
of the EU Copyright Rules. Report issued in July 2014,
http://ec.europa.eu/internal_market/consultations/2013/copyrightrules/index_en.htm
International landscape: Reform of national
copyright laws
 June 23, 2014. Leaked White Paper, A Copyright Policy for Creativity
and Innovation in the European Union,
http://ipkitten.blogspot.com/2014/06/super-kat-exclusive-herescommissions.html
 June 1, 2014. U.K. adopts a number of “small but important changes” in
exceptions to improve copyright law for the digital age; further
exceptions to take effect on October 1, 2104,
http://www.ipo.gov.uk/hargreaves-copyright-techreview
U.S. copyright reform
 U.S. is undertaking a comprehensive review of copyright
law, headed by three separate government agencies
conducting separate reviews:
 House of Representatives Judiciary Committee, Subcommittee on
Courts, Intellectual Property and the Internet,
http://judiciary.house.gov/index.cfm/hearings
 Hearings began on May 16, 2013, 14 hearings to date
 Department of Commerce Internet Policy Task Force
 Green Paper on Copyright Policy, Creativity , and Innovation in
the Digital Economy, http://www.uspto.gov/news/pr/2013/1322.jsp
 U.S. Copyright Office, reviews on copyright small claims, orphan
works and mass digitization, music licensing, and rights of making
available
International developments on
orphan works
 Being addressed in many countries; different approaches
involving exceptions and licensing mechanisms, such as
 European Union
• Memorandum of Understanding on Key Principles on the
Digitisation and Making Available of Out-of-Commerce Works
(September 20, 2011) ,
http://ec.europa.eu/internal_market/copyright/out-ofcommerce/index_en.htm
• Directive 2012/28/EU of the European Parliament and of the
Council of 25 October 2012 on certain permitted uses of orphan
works,
http://ec.europa.eu/internal_market/copyright/orphan_works/
International developments on
orphan works
 U.K.
 Enterprise and Regulatory Reform Act, April 25, 2013
 Canada
 Section 77 of Canadian copyright law,
http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-42/latest/rsc1985-c-c-42.html
 Section 32- exception to cover crossborder exchanges of orphan
works in print disabled format (2012)
 Orphan works provisions in Hungary, Czech Republic,
France, Japan, Korea, India, Sweden, Norway, Denmark,
Iceland, and Finland
 Pending legislation in China
Thank you!
Janice T. Pilch
Copyright and Licensing Librarian
Rutgers University Libraries
E-mail: janice.pilch@rutgers.edu