US vs. International Copyright Law
Copyright law internationally is governed by a series of several conventions and agreements. Most notably, the Berne Convention, which has been adopted by the WTO in the Agreement on Trade-Related Aspects of International Property Rights (TRIPs). Given the broad nature of international law, there are many differences in copyright rights granted through international law and those guaranteed by US law. The interesting question is whether, given these differences, US law provides better protection or if a copyright holder can find better protection under international law?
One major difference is on the issue of moral rights. Under the US Copyright Act, section 106A, moral rights are granted to an author.
the author of a work of visual art —
(1) shall have the right —
(A) to claim authorship of that work, and
(B) to prevent the use of his or her name as the author of any work of visual art which he or she did not create;
The American law, however, also grants several exceptions to the moral rights afforded an author, including the ability to waive those rights. This differs from the European version of moral rights, which do not necessarily require a copyright to exist. Instead, moral rights confer upon the creation of the work. For example, in Societe Le Chant du Monde v. Societe Fox Europe and Societe Fox Americaine Twentieth Century, four Russian composers sued Fox to prevent the use of their public domain works from being used in an anti-communist film. The judge agreed and had the film seized, even though no copyright existed. Strauss, The Moral Right of the Author, 4 Am. J. Comp. L. 506, 534-35 n.56 (1955).
Another major difference is on the issue of fair use. Section 107 grants limited use of copyrighted material without the permission of the copyright holder. Fair use has been found to include parodies of the original work and the use of quotes or excerpts from the work in critiques and other works, so long as the excerpt is brief.
International law has taken a different approach, more often preferring the concept of fair dealing. Fair dealing is the right to reproduce limited portions of a copyrighted work without infringing the rights of the copyright-holder. The fair dealing doctrine tends to be more specific than the § 107 fair use exceptions to copyright law.
“Fair dealing for non-commercial research or private study
A certain amount of copying is allowed under “fair dealing” for purposes of “non-commercial research or private study”. Since the law does not clearly define the amount of original material that can be copied, the Society of Authors issued guidance in 1965:
- one article from any one issue of a journal (even if that one article is the whole issue)
- one chapter or up to 5% (whichever is greater) of a book or similar publication
- up to 10% of a short book of up to 200 pages (Library Association guidelines)
- one poem or short story of up to 10 pages from an anthology, or
- the report of one case in law reports
You may copy for yourself or make a single copy for another person. Fair dealing does not cover multiple copying of extracts or articles, this must be done under the CLA Photocopying Licence, or with the permission of the rights-owner. It does not cover the copying of sheet music.
The Publishers’ Association and JISC have drawn up similar guidelines for fair dealing in the copying of electronic publications.
Fair dealing for criticism or review
Fair dealing for “criticism or review” allows copying within generally accepted limits.
The Society of Authors advises that permission need not be sought for short extracts provided that the content is quoted in the context of ‘criticism or review’ and not just to embellish the text.
A short prose extract is defined as:
- not more than 400 words
- or a total of 800 words in a series of extracts, none exceeding 300 words
A poetry extract is defined as:
- not more than 40 lines from a poem, providing that this does not exceed a quarter of the poem.
When deciding if the extract you wish to use is covered by fair dealing, consider:
- the length and importance of the extract
- the amount quoted in relation to your commentary
- the extent to which your work competes with the work quoted
Works that are out-of-copyright can of course be quoted from beyond these limits, providing you are using an edition that was published more than twenty-five years ago, and providing you acknowledge the source of the extract.”
http://library.leeds.ac.uk/info/200174/copyright_and_licences/176/fair_dealing_and_moral_rights
Just looking at these two differences—moral rights and fair use—which set of laws is better protection for the copyright owner? The international community extends a much greater protection, at least in these two instances, than the US Copyright Act. The fair dealing doctrine, for example, relies on legislative specifics while the US doctrine of fair use relies more on judicial interpretation and case law. These are, however, only a small representation of the differences between US law and the copyright laws of other countries. As more and more international agreements are signed (TRIPs was only enacted in 1994 and is continuing to strengthen), the protections afforded a copyright holder and author may one day become clearer internationally. For now, however, the differences and holes will continue to keep international copyright lawyers very busy.