Fitting United States Copyright Law Into the International Scheme: Foreign and Domestic Challenges to Recent Legislation

• Citation: Vol. 23 No. 4
• Publication year: 2010

Georgia State University Law Review

Volume 23 , ,

Article 4

Issue 4 Summer 2007

6-1-2007

Fitting United States Copyright Law into the International Scheme: Foreign and Domestic Challenges to Recent Legislation

Michael Landau

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Recommended Citation

Landau, Michael (2006) "Fitting United States Copyright Law into the International Scheme: Foreign and Domestic Challenges to Recent Legislation," Georgia State University Law Review: Vol. 23: Iss. 4, Article 4. Available at: http://digitalarchive.gsu.edu/gsulr/vol23/iss4/4

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FITTING UNITED STATES COPYRIGHT LAW INTO THE INTERNATIONAL SCHEME: FOREIGN AND DOMESTIC CHALLENGES TO RECENT LEGISLATION

Michael Landau¹

Introduction

Information, knowledge, and entertainment know no borders. Although a copyrighted work may have been created in a specific country under its own set of rules, often the market for the work may be national or, as is increasingly the case, international. Given this reality of the marketplace, over the last 100 years or so, nations have entered into various international agreements, treaties, or conventions to provide protection for member signatories and to attempt to harmonize other aspects of their copyright laws.² Historically, the United States has been slow to fully adapt its copyright laws to international norms.

For example, U.S. copyright law expressly denied protection to foreign works until 1891. It was common practice for U.S. publishers to purchase and import copies of foreign books and then

1. Professor of Law Georgia State University College of Law; JD University of Pennsylvania. The author would like to thank Nichole Hair and the GSU Law Review for all of their terrific work in setting up this symposium.

2. The lack of reciprocal protection in the 18th and 19th centuries was one of the factors that led to the harmonization movement. At the time, U.S. Copyright law expressly denied protection to foreign works until 1891. See david NlMMER & melville NlMMER, 4 NlMMER On copyright § 17.01 (Matthew Bender 2007). See also Catherine L. Fisk, Knowledge Work: New Metaphors for the New Economy, 80 chi. kent L. rev. 839, 864-65 (2005); Steven A Hetcher, The Music Industry's Failed Attempt to Influence File Sharing Norms, 7 Vand. J. ent. L. & prac. 10,10 (2004).

3. It was not until the International Copyright Act of 1891, commonly known as "the Chace Act" that there was any protection available for foreign authors in the United States. After 1891, if the work were manufactured in the United States and formalities were followed, there could be protection for a foreign work. The United States, after 1891, entered into several bilateral agreements with other nations. Despite the fact that many of the European States, however, had become members of the Berne Convention for the Protection of Literary and Artistic Rights ("Berne Convention") in or shortly after 1886. For various reasons, the United States did not officially become a signatory member for over one-hundred years, in 1988. The effective date of the amendments to the Copyright Act of 1976 based upon the Berne Convention Implementation Act was March 1, 1989.

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publish them in the United States with impunity. The book publishing industry in the United States flourished and profited without having to worry about infringement or the obligation to pay royalties. It has been noted that:

Like certain far-eastern locales about which American artists and publishers indignantly complain at present, the United States was a copyright piracy haven from the first copyright statute of 1790 until the Chace Act of 1891. During that century, foreigners were utterly without rights under United States copyright law, and American publishers busied themselves bootlegging the works of Dickens, Trollope, Hugo, et al.⁴

It was this unilateralism and lack of regard for foreign rights that led to some of the first reciprocal copyright agreements.⁵

During the last two decades, however, Congressional action to amend the Copyright Act of 1976⁶—often in response to international needs or as an obligation as part of an international agreement or treaty such as the Berne Convention, the TRIPS Agreement, the World Intellectual Property Organization (WIPO) Copyright Treaty,⁹

4. NlMMER & NlMMER, supra note 2, § 17.01 (C)( 1 )(a).

5. Charles Dickens was a vocal critic of the "pirate" publishers in the United States and a strong advocate for international protection. To illustrate the point, an episode of the U.S. television "western" series, "BONANZA" titled "A Passion for Justice" first aired on September 29, 1963 (season 5, episode 2). This episode showed Charles Dickens giving a reading of one of his stories in front of an audience, including, of course, Ben Cartwright and his sons, Hoss, Little Joe, and Adam. The Dickens character became livid when he realized that most of the people in the audience knew the work word-for-word, yet he had never authorized any of his works for publication in the United States. Dickens was portrayed by the actor Jonathan Harris, who was famous for his role of "Dr. Zachary Smith" on "LOST IN SPACE." See IMDB.com, "Bonanza," A Passion for Justice, http://www.imdb.com/title/tt0529477/ (last visited on June 22,2007).

6. Copyright Act of 1976, 17U.S.C. §§ 101-1332(2006).

7. Berne Convention for the Protection of Literary and Artistic Works, opened for signature Sept. 9, 1886, S. TREATY DOC. NO. 99-27 (1986), 1161 U.N.T.S 3, available at http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P82_10336 [hereinafter Berne Convention].

8. Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994), available at http://wvm.wto.org/english/tratop_e/TRIPS_e/t_agmO_e.htm [hereinafter TRIPS].

9. WIPO Copyright Treaty, S. Treaty Doc. No. 105-17 (1997), 36 I.L.M. 65.

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or the WIPO Performances and Phonograms Treaty¹⁰—has become the norm, rather than the exception.¹¹

In general, most of the amendments to the Copyright Act that were promulgated for purposes of international harmonization have not been challenged in the courts or other tribunals as being in violation of some other overriding law, whether domestic or international.¹² This changed in the mid-to-late 1990s, a busy time for Congress in the copyright arena. In 1998, Congress passed the following Acts: 1) The Sonny Bono Copyright Term Extension Act, extending the lives of both preexisting copyrighted works and future works by an additional twenty years;¹³ 2) The Fairness in Music Licensing Act,¹⁴ exempting "small businesses" from the obligation to pay royalties for the "public performances" of copyright works;¹⁵ and 3) The Digital

10. WIPO Performances and Phonograms Treaty, S. Treaty doc. No. 105-17, at 18 (1997), 36 I.L.M. 76.

11. For a complete list of the amendments to the Copyright Act, between January 1978 and June 2003, along with the corresponding Public Law Numbers and dates of enactment, see U.S. Copyright Office Circular 92, Preface, available at http://www.copyright.gov/titlel7/circ92.pdf (last visited on April 7, 2007). The list of amendments to the Copyright Act of 1976 that have been made between June 2003 and April 2007 can be found at the "Law" deep link on the U.S. Copyright Office's website at http://www.copyright.gov/titlel7 (last visited on April 7, 2007).

12. The theoretical limits of copyright legislation in the United States are established by article I, section 8, clause 8 ('The Copyright Clause" or "Intellectual Property Clause") and by the First Amendment. See, e.g., Paul J. Heald & Suzanna Sherry, Implied Limits on the Legislative Power: The Intellectual Property Clause as an Absolute Constraint on Congress, 2000 U. ILL. L. REV. 1119 (2000).

13. See Sonny Bono Copyright Term Extension Act, Pub. L. No. 105-298, 112 Stat. 2827 (1998) (codified as amended in scattered sections of 17 U.S.C.) [hereinafter CTEA]. The CTEA added an additional 20 years to the renewal terms of works that were copyrighted prior to January 1, 1978. The total term of protection for such works was 95 years from publication with notice, or for certain works, from registration and deposit. See Copyright Act of 1909, ch. 320, 35 Stat. 1075 (1909). The 95 years can be broken down as follows: 28 years (first term) + 28 years (renewal term) + 19 years (extension to renewal term effective in 1978) + 20 years (extension to the renewal term granted under the CTEA in 1998).

With respect to U.S. works created after January 1, 1978 that had not fallen into the public domain, the term of protection was increased from the "life of the author and 50 years after the author's death" to life of the author and 70 years after the author's death. 17 U.S.C. § 302(a) (2000).

14. The Fairness in Music Licensing Act of 1998, Pub. L. No. 105-298, §201, 112 Stat. 2827, 2830 (1998) [hereinafter FMLA]. The Fairness in Music Licensing Act is discussed in more detail, infra part II.

15. See 17 U.S.C. § 110(5) (2006) . Section 110(5) provides an exemption from violation of the right of public performance to "small businesses." Interestingly,"smaH" is not based upon the revenue or profitability of the enterprise; rather, it is based upon square-footage. Other than food service or drinking establishments, businesses with fewer that 2,000 gross square feet of space are exempt. Food service and drinking establishments with fewer than 3,750 gross square feet of...