Copyright Laws: Global Reach Of National Legislation?

The application of copyright laws differs from country to country, and while some nations have a strong, court-tested fair use regime, others do not. The United States, for example, is known for its robust fair use framework, which enables various uses and innovations on the internet. However, fair use is not explicitly integrated into international law or trade agreements, which can create challenges for global copyright consistency. This inconsistency has led to discussions and reviews of copyright rules in several countries, including Australia, South Africa, Ireland, and the European Union.

International copyright conventions and treaties

International copyright laws are not bound by statute, but instead, are based on treaties. There are several key international treaties that attempt to ensure uniformity among member states. These treaties provide protection for original works of expression that are eligible for copyright protection.

The Berne Convention is one of the most important international copyright treaties. It requires protection for all creative works in a fixed medium to be automatic and to last for at least 50 years after the author's death. The Berne Convention also allows for the rule of the shorter term, which states that the term of protection shall not exceed the term fixed in the country of origin of the work. The Universal Copyright Convention (UCC), Buenos Aires Convention, WIPO Copyright Treaty, and WIPO Performances and Phonograms Treaty are also notable international copyright treaties.

The World Intellectual Property Organization (WIPO) Standing Committee for Copyright and Related Rights (SCCR) is currently in discussions regarding international protection for broadcasting organizations and limitations and exceptions to copyright. WIPO has also established the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), which is discussing folklore and traditional cultural expressions.

The Office of Policy and International Affairs (PIA), headed by an expert copyright attorney, assists the Register with critical policy functions of the U.S. Copyright Office, including domestic and international policy analyses, legislative support, and trade negotiations. PIA represents the U.S. Copyright Office at meetings of government officials concerned with the international aspects of intellectual property protection.

National laws of each country

The application of copyright laws varies across different countries. While some countries have well-defined and court-tested fair use regimes, others are still in the process of reviewing and amending their copyright laws.

The United States is known for its robust fair use regime, which has enabled various uses and innovations on the internet to thrive. The US version of fair use explicitly allows certain purposes, such as commentary, criticism, and parody. It also empowers federal judges to consider four factors when determining whether the use of a copyrighted work is protected speech: the purpose and character of the use, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect of the use on the potential market.

On the other hand, some countries are still in the process of reviewing and amending their copyright laws. For example, Australia, South Africa, Ireland, and the European Union are considering adopting their own fair use-like regimes. These countries are evaluating the benefits of a flexible system of copyright exceptions and limitations while also ensuring compliance with existing international laws, such as the Berne Convention.

Additionally, countries like Malaysia, Singapore, Israel, Canada, and South Korea have already enacted their own versions of flexible exceptions and limitations to copyright. South Korea's amendment to its copyright laws in 2012 sparked a debate about whether its introduction of fair use aligned with its obligations under the Berne Convention and its trade agreement with the United States. This discussion centred around the "three-step test," which aims to balance the interests of creators, rightsholders, and the public.

The three-step test, which first appeared in the 1967 revision of the Berne Convention, has since been included in almost all international agreements on copyright. It requires that exceptions to the copyright rule be limited to specific cases, do not conflict with the normal exploitation of the work, and do not unreasonably prejudice the legitimate interests of the author or right holder. While this test provides a flexible framework for lawmakers, it has also been criticised for potentially restricting fair use and other rights that promote innovation and access to knowledge.

The Berne Convention

As of November 2022, the Berne Convention has been ratified by 181 states out of 195 countries in the world, most of which are also parties to the Paris Act of 1971. The United States became a party to the Berne Convention in 1989.

WIPO Copyright Treaty

Copyright laws vary from country to country, and there is no international copyright that will automatically protect an individual's work worldwide. Each country has its own unique copyright laws that govern intellectual property within that country. A country's copyright laws only apply to works created and used in that country.

To address this issue, several international copyright treaties and conventions have been developed, such as the WIPO Copyright Treaty (WCT). The WCT is a special agreement under the Berne Convention, which deals with the protection of works and the rights of their authors in the digital environment. It was adopted in Geneva on December 20, 1996, by the member states of the World Intellectual Property Organization (WIPO). As of August 2023, the WCT has 115 contracting parties.

The WCT provides additional protections for copyright to respond to advances in information technology since the formation of previous copyright treaties. It emphasizes the incentive nature of copyright protection, claiming its importance to creative endeavours. The treaty grants certain economic rights to authors and covers two subject matters to be protected by copyright:

• Computer programs, whatever the mode or form of their expression
• Compilations of data or other material ("databases"), where the selection or arrangement of their contents constitute intellectual creations

The WCT provides authors with control over the rental and distribution of their works (Articles 6-8), which may not be covered under the Berne Convention alone. It also prohibits the circumvention of technological measures for the protection of works (Article 11) and the unauthorized modification of rights management information contained in works (Article 12).

The WCT has faced criticism for its broad scope, including the prohibition of circumvention of technical protection measures, even in cases of fair use. Additionally, it has been criticized for applying a uniform standard to all signatory countries, despite their differing stages of economic development and knowledge industry.

Works protected automatically

Copyright laws vary from country to country, and there is no such thing as an international copyright that automatically protects your work worldwide. The protection of a US citizen's copyright in a particular country depends on the national laws of that country and whether the US has copyright agreements with that country.

The US has copyright relationships with most countries, and as a result of these agreements, each country honours the other's citizens' copyrights. Copyright, a form of intellectual property law, protects original works of authorship, including literary, dramatic, musical, and artistic works. This includes poetry, novels, movies, songs, computer software, and architecture. Copyright protection exists from the moment the work is created and does not require registration. However, registration is recommended for several reasons, including having the facts of the copyright on the public record and being eligible for statutory damages in litigation.

In the US, copyright is a form of protection granted by law for original works of authorship fixed in a tangible medium of expression. It covers both published and unpublished works and exists from the moment the work is created and fixed in a tangible form that is perceptible. While copyright laws do not protect facts, ideas, systems, or methods of operation, they may protect the way these things are expressed.

To summarise, while there is no international copyright protection, US citizens' copyrights are generally protected in most countries due to copyright agreements between nations. Works protected automatically under US copyright law include original works of authorship that are fixed in a tangible form, such as literary, dramatic, musical, and artistic creations.

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