Xref: utzoo misc.legal:8067 news.groups:8709 news.sysadmin:2238 Path: utzoo!utgpu!watmath!clyde!att!osu-cis!tut.cis.ohio-state.edu!mailrus!csd4.milw.wisc.edu!lll-winken!uunet!portal!cup.portal.com!ruel From: ruel@cup.portal.com (Ruel T Hernandez) Newsgroups: misc.legal,news.groups,news.sysadmin Subject: Re: The Coming of the Berne Convention Message-ID: <16600@cup.portal.com> Date: 2 Apr 89 21:46:40 GMT References: <37625@bbn.COM> <2648@cuuxb.ATT.COM> Organization: The Portal System (TM) Lines: 189 cosell@bbn.com (Bernie Cosell) asked some questions regarding changes to the Copyright Act of 1976 by the Berne Convention Implementation Act of 1988 (BCIA). The BCIA changes have been in effect since March 1, 1989. Note that the changes pertain to copyright claims occurring on or after March 1, 1989. There are now three layers of analysis in copyright law for the practicing copyright attorney. Generally, they are: (1) copyright claims made on or after March 1, 1989, under the BCIA-amended Copyright Act (note that any claims will be under the amended Copyright Act and not under the Berne Convention -- BCIA was written to forestall any self-execution of the Berne Convention under U.S. law); (2) copyright claims between January 1, 1978, and March 1, 1989, under the pre-BCIA Copyright Act of 1976; and (3) copyright claims before January 1, 1978 under the Copyright Act of 1909 -- note there are also different registration requirements for works published before January 1, 1978 (fortunately, most people here on USENET won't have to worry about things that far back). Fair use operates in the same fashion as always despite the BCIA amendments. A few short comments: With regard to the materials distributed here on the USENET, i.e., posted articles and software in form binaries and source, one must address both Section 107 fair use and Section 117 computer software fair use. As for modified or improved copies of programs, those are known as derivatives and only the copyright owner can distribute them unless he says otherwise. If one alters his copies, he should not distribute them. Keep in mind that the exclusive rights of the copyright owner in his work are those of reproduction, distribution, derivation, public performance, and public display of the work. With regard to online distributed materials, a copyright owner may certainly be authorizing free distribution and copying of his works in their original form with any limitations that he may specify. A Side Note: One other person from Canada commented on this string of messages. In Canada, as well as in countries such as Great Britain and other European countries, there is the concept of "fair dealing" which _seems_ to be a little more liberal than American fair use. Also, with regard to Canada, prior to BCIA, American authors/publishers got Berne protection via the "back door," i.e., publishing simultaneously in the U.S. and in a Berne country such as Canada. Note that this "back door" approach has not always been successful, particularly where specific requirements of a country may apply, such as in the unfortunate case where the copyright on the movie "The Sting" was not recognized in Thailand (Thailand refused to recognize the Canadian publication of the film since there was a failure to comply with Canadian publication standards). With regard to changes to the Copyright Act under the BCIA, there really doesn't appear to be too much to worry about. Perhaps the relevant changes in copyright law that would concern most people are: (1) COPYRIGHT NOTICES: Copyright notices are now VOLUNTARY and no longer mandatory. However, one is encouraged to include a copyright notice to defeat any defenses of innocent infringement. Note that what this change to notice requirements also does is obliterate the Omission of Notice remedy Section 405 for works publicly distributed AFTER March 1, 1989. Since notices are now voluntary and no longer mandatory, one no longer has to worry about leaving out a notice. However, for works publicly distributed BEFORE the March 1, 1989 effective date of the BCIA, the omission of a notice does not invalidate a copyright if (1) the notice was omitted from only a relatively small number of copies distributed to the public; (2) registration for the work was made before or within five years of the publication without notice and there was a reasonable effort to affix a notice to distributed copies; or (3) the notice was omitted in violation of a written agreement that conditioned public distribution on the attachment of a notice to copies of the work. In the context of USENET, one may try to argue based on Section 405 that most of the messages and articles posted to USENET without a notice prior to March 1, 1989, have fallen into the public domain. Also note that the Universal Copyright Convention (UCC), another international copyright treaty which the United States is a party to, still requires that one provide a copyright notice in those UCC countries that require certain formalities for copyright. Therefore, one may still want to provide a copyright notice for maximum protection AND benefits under the Copyright Act here in the United States and under both the Universal Copyright Convention and the Berne Convention with regard to foreign countries. A Side Note for those sticklers regarding the exact form of a copyright notice under American law: There are the statutory provisions for Copyright 19xx authorname, Copr. 19xx authorname, "C" in circle followed by date of first publication and author's name. However, there are the little known Compendium II guidelines for the Copyright Office which say that "(C)" ("C" in parenthesises and not in a fully enclosed circle) was an "acceptable variant" at least for registration purposes (note that one could challenge the copyright and the notice later in court). There is also the FORRY, INC. v. NEUNDORFER, INC. case that indicated that a "(C)" (instead of "Copyright", "Copr." or a C-in-a-fully-enclosed-circle) was good enough to provide a copyright notice. However, the analysis there must be done on a case by case basis. To avoid these challenges, one might as well provide a statutory sufficient notice. (2) REGISTRATION: Foreign authors no longer have to register their works with the Copyright Office in order file a copyright lawsuit in U.S. federal court. However, American authors still have to register in order to get a ticket to file a copyright lawsuit in federal court. Registration is encouraged within three months of publication in order to take advantage of receiving awards of attorneys fees and the newly DOUBLED statutory damages. This dual tier of registration (no registration for foreign authors, registration for American authors) may seem strange and unfair to some. However, the Berne Convention does not prohibit the imposition of formalities on a country's own people. There was a debate as to whether to eliminate ALL registration requirements completely for both foreign and domestic authors. Instead, this dual scheme was implemented. As Ken Hill said in a previous post, perhaps this was just another Federal Attorney Full-Employment Act. :-) Certainly, as was noted in BCIA legislative history, the Copyright Office was against eliminating all registration requirements. One legal commentator, Harry G. Henn in his 1989 SUPPLEMENT TO COPYRIGHT LAW: A PRACTITIONER'S GUIDE, noted that "American adherence to the Berne Union makes more likely the abolition of the Copyright Office." It is doubtful that would ever happen, however, the Copyright Office's workload may decrease under BCIA with regard to registration of foreign works. (3) RECORDATION OF TRANSFERS: Transferee/holders of a copyright, or of one of the exclusive rights under copyright, transferred to them, such as in an assignment, no longer have to be record the transfer with the Copyright Office. However, it is still of some benefit to record a transfer. Recordation of a transfer provides actual notice to those who search Copyright Office records and constructive notice to everyone about the transfer. (4) DOUBLED STATUTORY DAMAGES: Infringement $500 - $20,000 Wilful Infringement $100,000 Infringement, but did not know it was $200 The award of statutory damages and attorneys fees is contingent upon registration within 3 months of publication. Otherwise, one will have to settle for actual damages and profits which could be less. (5) MORAL RIGHTS: Moral Rights was a big issue in the development of the BCIA. Moral Rights are (1) the right of paternity (right to claim authorship of a work) and (2) the right of integrity (right to object to any distortion, mutilation, modification, or derogatory changes to a work that is prejudical to the author's honor or reputation). There is NO explicit provision for moral rights in BCIA. However, the Senate did say that current law, such as in certain provisions of copyright law, unfair competition law, defamation and libel law, misrepresentation law, and various state statutes, was sufficient to cover such rights. However, the House said that BCIA does not expand or reduce any right of the author to assert moral rights in a copyrighted work. In BCIA, the Congress doesn't provide much guidance on how to handle moral rights except to say that it's there. There are other changes, but they deal with licenses for coin-operated phonorecord players (jukeboxes) and with the Copyright Royalty Tribunal both of which may not be of much interest to users here. If one wants to see the changes to Copyright Act made by BCIA, go to a library and get the volume for Title 17 of the United States Code (that has the complete Copyright Act) and get the more recent issues of the UNITED STATE CODE CONGRESSIONAL AND ADMINISTRATIVE NEWS (December 1988, I think) and look for the Berne Convention Implementation Act of 1988 at 102 STAT. 2853. The legislative history should be found in one of the other accompanying issues. Note that the legislative history there will tell what the Senate was doing when it passed its version of the Act although the final version that was eventually signed by President Reagan was essentially the House version. Also, if one has access to a law library, look at the JANUARY 1989 SUPPLEMENT TO NIMMER ON COPYRIGHT (it's also the supplement to several other of Nimmer's books published by Matthew Bender & Co., Inc.). In it are the House Report, the Senate Report, the House and Senate Debates, the Senate Treaty Ratification Debate, the public law itself, and commentary by Nimmer. ------ Ruel T. Hernandez, Esq. The above is only comment CompuServe: 71450,3341 GEnie: R.HERNANDEZ and conjecture. If you want Internet: ruel@cup.portal.com definitive legal advice, see Copyright 1989 Ruel T. Hernandez an attorney.