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United States Copyright After Berne - the Most Significant Catalyst in 100 Years

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United States Copyright After Berne - the Most Significant Catalyst in 100 Years LOGOS United States copyright after Berne - the most significant catalyst in 100 years I Fred Koenigsberg After a centuty on the outside looking in, the United States became a member of the Berne Convention on March 1, 1989. It is not too soon to take stock in a world perspective of the changes which Berne adherence has wrought and of the post-Berne adherence developments which evince continuing changes in US law. In the 19th century, the US was in the A graduate of Cornell University unhappy position of being a center of copyright (BA 1967), of the University of piracy. In 1891, through the Chace Act, the US Pennsylvania (MA 1969) and the gtanted protection to foteign nationals for the first time, albeit undet certain conditions. And, as Columbia Law School (JD authorized by that Act, the US entered into a seties 1972), Fred Koenigsberg was a of bilateral copyright tteaties with other countries. member of the US State The Berne Convention, established in Department-appointed Ad Hoc 1886, was, of course, the leading multilateral inter­ national copyright treaty. But Berne set minimum Committee on United States standards for the copytight laws of member states, Adherence to the Berne which the US law did not meet. Hence, in the first Convention and the National half of the 20th century, the US had no real part in Committee for the Berne the international copyright community. Convention. A counsel in White Faced with the incteasing importance of intetnational copyright relations after World War & Case, New York, Koenigsberg II, the US became the diiving force behind estab­ is also President-elect of the lishment of a multilateral treaty it could join - the American Intellectual Property Universal Copyright Convention, which became Law Association, a Trustee of the effective in 1955. But, as the globalization of copy- tight markets increased exponentially, the US Copyright Society of the USA finally lecognized that its non-membership in Berne and a past Chairman of the was a political and trade liability. That recognition Copyright Division of the led to the enactment of the Berne Convention American Bar Association. He Implementation Act of 1988, effective March 1, 1989, which made the changes to US copyright law gratefully acknowledges contribu­ which allowed Berne adherence. tions of his colleague Charles US copyright law has changed in five Lieb in the preparation of this significant areas as a result of Berne adherence: article. 1. Abolition of Mandatory Copyright Notice One of the major impediments to US adher­ ence to Berne had been the requirement of LOGOS 2/2 © WHURR PUBUSHERS 1991 United States copyright after Berne copyright notice as a prerequisite to copyright seems to be the implication of the Report of protection. The Berne Convention banned all the Senate Judiciary Committee, but the formalities as prerequisites to protection; US Report of the House Judiciary Committee law took just the opposite approach. states that: "Current notice requirements are Thus, under American law before the 1976 unchanged for works first published before Copyright Act, a copyright notice on every [March 1, 1989]" (emphasis added). Was this a published copy of a work, in proper form and slip - should the Report have said "copies first position, was essential for copyright ptotection. distributed" - or was it an accurate statement The casebooks were replete with instances of Congtess' intent? where authors were deprived of all copyright Aftet the change in the law, the Copyt ight protection and saw their works thtust into the Office initially took the position that all copies public domain because of the most minor tech­ of wotks published befote March 1, 1989, no nical irregularities. matter when distributed, were required to bear The 1976 Copyright Act allowed errors in a proper copyright notice as a prerequisite for or omission of the notice (in some circum­ protection. Aftet many practitioners asked the stances) to be cured and the copyright saved. Copyright Office to sciutinize the question "Reasonable" placement of the notice sufficed. mote closely, the Copytight Office modified its But the notice formality was still very much a view: It now takes no position. It may well be prerequisite fot protection. that a coutt test of this question will be neces­ The Berne Convention Implementation sary. In the meantime, cautious copytight Act changed only one woid, but by doing so owners continue to place copyright notices on swept away the notice lequitement. The pre- such works and, indeed, on all works. Berne Copyright Act specified that "a notice of copyright... shall be placed on publicly dis- 2. The Requirement of Copyright Registration as a tributed copies...." The post-Berne Copyright Prerequisite to an Infringement Suit Act changed "shall" to "may". Notice was now Under the 1976 Copytight Act, copyright reg- entirely permissive. The requirements of isttation was entirely permissive. It was not a Beine, barring formalities, were satisfied. prerequisite to copyright protection. However, Because the Berne Convention Implemen­ it was a prerequisite to the institution of tation Act was not retroactive, the notice infringement litigation. This requirement was lequirement temained for copies distributed seen to conflict with the Berne admonition before March 1, 1989. But the transition from against copytight formalities. Certainly, regis­ old regime to new has raised an intriguing tration could be (and is) a prerequisite fot question: Need a copyright notice be placed on certain temedies, and such procedural require­ copies of a work published before March 1, ments are not at variance with Berne. But if 1989, but not publicly distiibuted until after access to the coutts is barred to those who March 1, 1989? For example, many books of have not registered, their copyrights are, for all enduring popularity are reprinted over many intents and purposes, subject to registration, years. Need a post-March 1, 1989 printing of a and so the lettet and spirit of Berne are vio­ book first published before March 1, 1989 bear lated. A change in US law was mandated. a copyright notice? The notion of abolishing this incentive to The Copyright Act speaks of notice being registei did not sit well with some, notably the placed on all copies of published wotks which Register of Copyrights. The Copyright Office are "publicly distributed" before or after the felt that its tecotds of registtation - depicted as relevant date. Thus, it could be argued, the a useful "i-iatuf al treasure" - would suffer if reg­ date of public distribution of the particular istration were no longer a prerequisite to an copy, and not the publication date of the work, infringement suit. Thus, as a matter of political determines whether absence of a notice will reality, if not absolute logic, these two divet- throw the work into the public domain. This gent needs had to be accommodated. The 69 .
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