Request for Question Clarification by
tehuti-ga
on
25 Oct 2003 17:01 PDT
Hello Fabrizio,
Please excuse the delay in my reply. Firstly, I need to stress very
strongly that I am NOT a copyright lawyer, and have only gained a
superficial insight into copyright issues through my training in
library and information studies. Since it appears that lawyers cannot
agree on the interpretation of international copyright questions, I
certainly do not feel able to give you a definitive reply! What
follows below is a summary of information I have found in my searches
on this topic.
I have found some further information about the French wartime
extension:
“France uniquely extends the EU period with provision for the annees
de guerre: extra time for the First World War (considered to have
lasted from 1914 to 1919) and the Second World War (1939 to 1948). The
Matisse estate, for example, is protected for the artist's life + the
EU 70 years + five years for WW I + nine years for WW II. The
extension was reaffirmed by French courts in two decisions during
November 2001 and is likely to be challenged by the European
Commission. France also adds a further thirty years for an author who
"died for France".”
http://www.caslon.com.au/durationprofile.htm
OK, let’s piece together the sections of the Berne Convention
http://www.cerebalaw.com/berne.htm
that might apply to this case. Please excuse me, while I think aloud:
Art. 3.1 The protection of this Convention shall apply to:
(a) authors who are nationals of one of the countries of the Union,
for their works, whether published or not;
Thus, a French composer will be covered irrespective of where his
works have been published, and his unpublished works will be covered
as well.
Article 5
(1) Authors shall enjoy, in respect of works for which they are
protected under this Convention, in countries of the Union other than
the country of origin, the rights which their respective laws do now
or may hereafter grant to their nationals, as well as the rights
specially granted by this Convention.
Hmmm, the wording here is terrible!!! However, given that the phrase
“their respective laws” refers to a plural entity, it cannot refer to
the singular “the country of origin” “Their respective laws”: the
“their” must refer to “countries” rather than to “authors”. This
would then imply that when copyright issues for a French composer
arise in a country other than France, it will be the local laws rather
than the French laws that will apply.
And now the section that you have already cited:
Art 7 (8) In any case, the term shall be governed by the legislation
of the country where protection is claimed; however, unless the
legislation of that country otherwise provides, the term shall not
exceed the term fixed in the country of origin of the work.
Hmmm, in your case, protection is being claimed on the basis of the
laws of France rather than the laws of the country where you are
located. Yet Art 5.1 and Art 7.8 would imply this cannot be done.
Article 19
The provisions of this Convention shall not preclude the making of a
claim to the benefit of any greater protection which may be granted by
legislation in a country of the Union.
Article 19, however, would seem to be saying that yes, if France
offers greater protection, then French law can be used as the basis of
a claim.
I found the following interpretation from the American Library
Association, which supports the notion that it is always the local law
that applies when infringement is being claimed:
“International copyright law is concerned with the interplay of two or
more nations' copyright systems. Each country has its own method of
recognizing, granting and protecting copyrights. The individual
nuances of each of the involved nation's copyright laws must be
considered. For example, some countries do not have intellectual
property laws at all; others grant more protections than the U.S.
does. There is no such thing as an "international copyright" that
unconditionally protects a work throughout the world. Instead, the
degree of protection a work is entitled to in a particular country
depends on the law of that nation.”
http://www.ala.org/Content/NavigationMenu/Our_Association/Offices/ALA_Washington/Issues2/Copyright1/International_Copyright/Default2660.htm
But, just to complicate matters, I have also found the following,
which may be of relevance depending on who is trying to act against
you:
“Choice of Law in International Copyright Disputes” by Mark V.B.
Partridge
http://www.pattishall.com/pdfs/ChoiceofLawinInternational.pdf
The discussion is about works created in a foreign country by
nationals of that country, whose copyright is deemed to have been
infringed within the US. The foreign nationals brought the case to a
US court, and the question arises as to which country’s law must be
applied.
Here are some pertinent extracts:
“the Berne Convention provides that the national of a member state is
entitled to national treatment in each other member state, and some
commentators have concluded that the applicable law is the copyright
law of the country where the infringement occurred.”
However, the point is made that this provision in the Berne Convention
“merely assures that the national law of infringement will be applied
uniformly to foreign and domestic authors; it provides no guidance on
the question of ownership. Indeed, the Berne Convention Implementation
Act specifically provides that the rights eligible for protection
"shall not be expanded or reduced" by virtue of the Berne Convention.
17 U.S.C. 104(c).”
With respect to the case being discussed in the document, it is
stated:
“Under U.S. choice of law principles, the applicable law for
determining interests in property is the
law of the state with the most significant relationship to the
property and the parties. Since the works were created by Russian
nationals and first published in Russia, ownership should be
determined by Russian law. The Berne Convention provides nothing to
the contrary. The question of ownership also involves the scope and
nature of the interest owned. This, too, is determined by Russian
law.”
From this, the point made is:
“Do not assume that the publisher of the work automatically has
ownership and standing to sue. Under U.S. law, only the legal or
beneficial owner of an exclusive right in the work has standing to
sue.”
I'm sorry if this has only served to muddy the waters further!
