Recent Developments in Copyright Law: the Berne Convention
| Publication year | 1993 |
| Pages | 2525 |
| Citation | Vol. 22 No. 12 Pg. 2525 |
1993, December, Pg. 2525. Recent Developments in Copyright Law: The Berne Convention
In 1988, the United States joined the Berne Convention. By becoming a signatory to that international copyright treaty, the United States changed the foundation of its copyright laws more radically than any other change in the 200 years since the first Copyright Act. The changes to copyright law ushered in by the Berne Convention have a significant effect on the way attorneys conduct business and counsel their clients. As a result of the Berne Convention, such time-honored practices as copying contract provisions, form letters and even briefs may constitute copyright infringement.
In 1886, eight nations banded together in Berne, Switzerland, to recognize copyright protection across their borders,(fn1) resulting in the Convention for Protection of Literary and Artistic Works ("Berne Convention").(fn2) Since then, the Berne Convention has undergone seven revisions, and seventy-seven nations have joined. The most recent text of the treaty was incorporated in the Paris Act of 1971 ("Paris Text").
Because the Berne Convention prohibits formalities for copyright protection, the United States fought against it for approximately 100 years.(fn3) The Berne Convention's prohibition is in stark contrast to the formidable edifice of copyright formalities which had been built into American copyright law over two centuries.(fn4) As part of its opposition, the United States was instrumental in forming the Universal Copyright Convention ("U.C.C.") in 1952 to compete directly with the Berne Convention. The U.C.C., a separate treaty organization,(fn5) was created to accommodate the peculiarities of American copyright law, including the use of the familiar copyright notice "©".
Under the Copyright Act of 1909, it was necessary to mark and register works properly in order to protect them. This copyright notice consisted of marking the work to be protected with the familiar "©" symbol, the word "Copyright" or the abbreviation "Copr.", along with the year the work was first published and the name of the party claiming the copyright protection. Failure to mark a work properly injected the work into the public domain. Concurrently, state copyright law developed to protect unpublished works.
The Copyright Act of 1976 ("1976 Act") modified the formal rules of the 1909 Act in two major respects.(fn6) First, it preempted state copyright law.(fn7) In the place of state law, federal copyright law was extended to protect unpublished works.(fn8) Second, a work became protected by operation of law.(fn9) Therefore, under the 1976 Act, copyrightable works were automatically protected at the time of their creation. However, failure to mark a work properly could still result in loss of copyright protection for that work.(fn10)
In retrospect, it is apparent that the 1976 Act began the major shift in copyright law, which culminated when the United States joined the Berne Convention in 1986 and implemented the treaty by passing the Berne Convention Implementation Act ("BCIA").(fn11) The BCIA modified U.S. copyright law only to the extent necessary to conform with Berne, evidencing Congress' reluctance to make wholesale changes. Furthermore, the...
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