As technology surmounts geographic boundaries to link creatives and clients, international copyright laws and the Berne Convention help protect your work abroad.
The Internet has made the transfer of artwork around the world a simple matter of clicking, and has opened up international markets to design firms in ways that were unimaginable 10 years ago. There’s no denying that, in the new millennium, copyright protection has become an international issue. A basic understanding of the primary international copyright treaty has become crucial for design firms looking to avoid copyright problems overseas.
In 1886, in response to rampant pirating of books and music across international borders, 10 countries gathered together and recognized that the copyrights of their citizens needed to be protected beyond their respective borders. On Sept. 9, 1886, the representatives signed the Convention for the Protection of Literary and Artistic Works in Berne, Switzerland, marking the birth of the Berne Convention. Since then, the convention has grown to include 77 countries. All major countries are represented, and the convention recently emerged as the governing instrument of international trade.
The heart of the Berne Convention consists of two principles. The first is that artists should enjoy the same protection in other countries for their works as the protection those countries afford their own artists. The second is that minimum standards of copyright protection must be applied equally to all copyright holders, regardless of where they created their work. With these two principles, the convention tries to accommodate the various copyright laws of its signatory countries. Under this philosophy, while every country may accord different rights and remedies to its copyright holders, members of the convention will treat foreign copyright claimants as they would their own citizens.
For design firms involved in disputes with international clients or whose copyrights have been infringed in foreign countries, this means they can enforce their copyrights under the copyright laws of the country where the problems occurred.
Reshaping U.S. Copyright Laws
Although Berne has been in existence for more than 100 years, the U.S. became a member just over a decade ago, previously resisting affiliation because of the U.S.’s serious philosophical differences with European copyright law.
U.S. copyright law, at its heart, is based on protection of a copyright holder’s economic rights. Its way of protecting those rights consists of statutory formalities designed to confer the exclusive right to profit from copyrightable work to the holder of the copyright. The Berne Convention, however, focuses on the artist’s moral rights and, contrary to U.S. law, a refusal to require copyright formalities as a condition of ownership.
Despite these differences in philosophies, the growth of the Internet and pressure from the global economy made U.S. participation necessary and inev-itable. So, on March 1, 1989, almost 100 years after the convention was drafted, the U.S. finally signed on.
Becoming a convention member dictated a number of changes to U.S. copyright law. The Berne Convention requires member nations to recognize and protect an artist’s moral rights, a group of rights associated with an artist herself, as opposed to economic rights in the work she creates. Moral rights consist primarily of various rights of attribution and integrity, such as the right to be credited as the creator of your work and the right not to have your work destroyed or altered without your permission. As a condition of Berne membership, the U.S. recognizes moral rights in fine art under the Copyright Act (created during the country’s founding), and U.S. citizens have gained, under Berne, expanded moral-rights protection in foreign countries.
As a further condition of Berne membership, U.S. copyright law was amended to make copyright notices optional rather than mandatory and to allow foreign nationals to file infringement actions in the U.S. without registering their copyrights. Although Berne membership required modifications to U.S. copyright law, the advantages to American creatives far outweigh any of the changes required to conform.
Going Global and Digital
Today, the World Intellectual Property Organization (WIPO), an arm of the United Nations, governs the Berne Convention. As the organization approached the new millennium, it faced a new copyright hurdle with the explosion of the Internet. Sparked by the music industry, which sought stronger protection for the worldwide digital transfer of music, WIPO convened a diplomatic conference in 1996 to negotiate new treaties among signatory nations to protect copyrighted work in the digital environment around the world. The result was expanded protection that covers the digital transfer of artwork.
While technology and the Internet transcend geographic borders, it’s still important for creatives to recognize copyright borders. Acts of copyright infringement that take place completely outside of the U.S., for example, are not actionable under the U.S. Copyright Act. The problem is that disputes involving Americans and foreign companies often involve activities both here and abroad, leading to the difficult legal issue of where to sue. The determination of which court or which country has jurisdiction over the problem is an extremely complicated one. In addition, in order to claim protection for your work in a foreign country under the terms of Berne, the work must have been published after March 1, 1989—the date the U.S. became a signatory—or the work is ineligible for treaty rights.
Foreign or Domestic, be Prepared
Although Americans now have copyrights that are enforceable in Berne member countries, having to sue in a foreign country or trying to collect money from a foreign client is expensive and time-consuming. The best way to avoid international copyright problems with foreign clients is to create a contract before transferring any digital files or other completed artwork. The contract should specify copyright ownership, payment provisions, type of use and jurisdiction in the event of a problem. Make sure you place copyright notices on everything you send out and, whenever possible, use encryption and low resolution when transferring images digitally, to prevent copying.
In the end, protecting yourself and your firm from copyright problems with international clients isn’t very different from protecting yourself with domestic clients. Protection, both at home and abroad, requires awareness, preparedness and plain old common sense. If a problem arises, it always helps to know your rights and how they’re protected—whether at home or abroad.
HOW April 2001