Nation, Duration, Violation, Harmonization: An International Copyright Proposal for the United States
NATION, DURATION, VIOLATION, HARMONIZATION: AN INTERNATIONAL COPYRIGHT PROPOSAL FOR THE UNITED STATES
DAVID NIMMER
I
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duration to alleviate potential treaty violations with minimal disruption to
exiting interests.
II
THE SETrING: OUR NATION
1891.2 During that century, foreigners were utterly without rights under U.S.
copyright law, and U.S. publishers busied themselves bootlegging the works
of Dickens, Trollope, and Hugo, three authors noted for their role in
spearheading international copyright protection, particularly in response to
the egregious U.S. example.3
The International Copyright Act of 1891, 4 more commonly known as the
Chace Act, grudgingly began the process of according some protection to
foreigners.
Although this Act was passed only several years after the
formation of the world's oldest and foremost multilateral copyright
treatythe Convention for the Protection of Literary and Artistic Works, signed at
Berne, Switzerland on September 9, 1886 ("Berne Convention")-the United
States nonetheless declined to ratify the Berne Convention. 5 At that time,
simple economics dictated the lack of U.S. protection for foreigners-the
United States did not wish to pay for the use of works by non-American
authors, as no reciprocal revenue could be expected to flow back to American
authors from the use of their works abroad. "In the four quarters of the
globe, who reads an American book?" ran a "famous exclamation" of 1820,
1. A decade ago, the most problematic countries were Hong Kong, Singapore and South
Korea, all of which have since capitulated to Western pressure and enacted internal copyright
protection. Today, the focus has shifted even further. For example, see United States Trade
Representative, 1991 National Trade Estimate Report on Foreign Trade Barriers (US Govt Printing Office,
1991) ("1991 National Trade Estimate Report") (general problems with copyright enforcement in Brazil
at 23, Egypt at 62, Gulf Cooperation Council states at 98, India at 104, Nigeria at 170, Pakistan at
179, and Philippines at 185; with video cassette piracy in Greece and Italy at 94 and 119; with
unauthorized retransmission in Israel at 118; with software piracy in Germany at 81, Italy at 118, and
Turkey at 221); Charles Wallace, The FrustratingCampaign to Stop Thai Drug Copying, LA Times DI col 5
(Dec 3, 1990) ("Thailand is infamous as a source of counterfeit goods ranging from fake watches to
pirated audiotapes and videotapes selling for as little as $1 each .... Jack Valenti, chairman of the
Motion Picture Export Assn. of America, called the country 'the worst offender of intellectual
property rights in Asia.' ").
which Justice Holmes quoted apropos of the lack of revenue to this nation
from the export of its intellectual property. 6
As authorized by the Chace Act, the United States began to conclude
bilateral agreements with various nations starting in 1891, 7 a process that
continued through the 1950s. s The Chace Act provided that, so long as they
complied with U.S. notice, registration, and deposit requirements, as well as
the manufacturing clause that the Chace Act introduced into U.S. copyright
law, foreigners whose nations provided reciprocal protection to U.S. nationals
could obtain U.S. copyrights for their works. The manufacturing clause
proved to be the fly in the ointment, however; under its terms, a "book,
photograph, chromo, or lithograph" was eligible for U.S. copyright
protection only if "printed from type set within the limits of the United
States," or "from negatives or drawings on stone made within the limits of the
United States." 9 Given that onerous requirement, the Chace Act hardly
opened the floodgates to copyright protection for foreigners. In fact, as
former Register of Copyrights Barbara Ringer commented, the Chace Act's
manufacturing clause strictures "made the extension of copyright protection
to foreigners illusory."' 0
This series of draconian formalities continued past the Chace Act into the
general revision of U.S. copyright laws that was passed in 1909."1 That
statute, which governed until its revision in 1976, set U.S. law irreconcilably at
odds with the anti-formal tenor of copyright developments throughout much
of the rest of the world, and in particular throughout the Berne Union.' 2
Given the Berne Convention's recognition of copyright protection even
absent compliance with formalities, U.S. reliance on formalities as a condition
to copyright subsistence precluded its participation in the world copyright
community. 13
Even as late as World War II, the United States remained a net importer of
copyrighted goods. 14 Since then, however, it has gradually become the
principal copyright exporter in the world.' 5
The watershed change in U.S. copyright orientation began in the 1950s.
In 1952, a vehicle was finally devised to break the logjam between U.S. notice,
registration, deposit,
manufacturing, and other formal requirements and
Berne's mandate of copyright protection wi (...truncated)