Nation, Duration, Violation, Harmonization: An International Copyright Proposal for the United States

Law and Contemporary Problems, Dec 1992

Throughout most of its history, the US has adopted copyright laws independent of the outside world. That changed in 1989 when Congress joined the Berne Convention.

A PDF file should load here. If you do not see its contents the file may be temporarily unavailable at the journal website or you do not have a PDF plug-in installed and enabled in your browser.

Alternatively, you can download the file locally and open with any standalone PDF reader:

https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4145&context=lcp

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 - 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)


This is a preview of a remote PDF: https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=4145&context=lcp

David Nimmer. Nation, Duration, Violation, Harmonization: An International Copyright Proposal for the United States, Law and Contemporary Problems, 1992, pp. 211-239, Volume 55, Issue 2,