What is Copyright Law and How Does it Work?
Copyrights protect original works by authors of literary, dramatic, musical, and artistic creations.[1] Copyrights fall within the scope of intellectual property law, and while there have been attempts to provide uniformity for copyright law among countries’ authors and their works, the current treaties and agreements in place fail to provide adequate remedies for authors seeking remedy for copyright infringement.[2]
Copyright infringement is a common issue in the United States (“U.S.”).[3] In the digital age, as information and creations can be shared ubiquitously and instantaneously, the frequency of copyright infringement has grown substantially and will likely continue to grow.[4] However, the law of copyright itself, having developed in some aspects, has failed to address the major pitfalls for those seeking remedy or protection through copyright law.
The U.S. Copyright Office recognizes that “copyright law serves a critical role in promoting and disseminating American works of authorship.”[5] Additionally, “copyright protection helps to sustain large businesses, small companies, and individual creators in the creative industries.”[6] In spite of this, current copyright law is still incomplete when it comes to protecting the work of authors seeking to utilize it.
Title 17 of the U.S. Code (“U.S.C.”) is the primary document governing American copyright law.[7] Inter alia, the title outlines the rights of copyright holders, what parties are entitled to a copyright, and when the use of a copyright is or is not an infringement.[8] Works of authorship covered under the Code include:
(1) literary works; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound records; and (8) architectural works.”[9]
In the United States, copyrights are extended to both unpublished and published works.[10] All unpublished works – regardless of nationality or domicile – are protected by U.S. Code.[11] Published works, however, are only protected under the Code if the author is a national or domiciliary of the United States, or is a national or domically of a treaty party, such as the Berne Treaty which attempts to create uniform copyright law for all its member states.[12] Additionally, published works are protected if the work was first published in the United States, or a treaty party nation, was a work incorporated into a building within the United States or treaty party, or came within the scope of a Presidential proclamation.[13] The known author of published works enjoys copyright protection for the duration of their life plus seventy years after the year of their death.[14] Published works with an unknown author and other works such as work done by hire are covered by copyright protection, either ninety-five years after publication of the work or 120 years after the work was first created.[15] For example, “Steamboat Willie,” the popular short film directed by Walt Disney came into the public domain at the beginning of 2024.[16] The film was produced in 1928 and is considered a work for hire, thus copyright protection expired for it ninety-five years after its publication.[17]
Title 17 of the U.S.C. details the exclusive rights of copyright holders , as well as the exceptions to such exclusivity.[18] The “Fair Use” exception allows for use and reproduction of any copyrighted work “for purposes such as criticism, comment, news reporting, teaching, scholarship, or research.”[19] In case of disputes, courts look to four factors to determine when the use or reproduction of a copyrighted worked constitutes “fair use”:
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.[20]
Many other countries have exceptions similar to the Fair Use exception.[21] The United States’ exception, however, is noticeably vague and has caused controversy among critics and those attempting to protect themselves through copyright law.[22]
Mexico, for example, is one such country whose copyright exceptions are listed much more extensively in the national law.[23] Article 28 of the Mexico Constitution covers the nation’s copyright laws and aims to safeguard and promote the “cultural heritage of the Nation, and the protection of the rights of authors and performers and also those of publishers, producers, and broadcasting organizations. . . .”[24] Unlike in the United States, there is no nationality or origin statute limiting the protection of published authors in Mexico.[25] Similar to the United States’ Fair Use exception, works may be used without the consent of the owner, so long as the work is of public interest and the Federal Executive – acting through the Secretariat of Culture – agrees to license the publication in exchange for compensatory remuneration.[26] Works are considered to be “in the public interest” when they are “necessary for the advancement of science, national culture, and education.”[27] While parties argue this provision does not provide much more definition than the Fair Use exception in Title 17 of U.S.C., the provision details the extent to which the limitations may apply.[28] Additionally, the compensatory remuneration requirement allows copyright holders to receive payment from others’ use of their copyrighted material when the reproduction is made “without any intention of profit and for personal and private use.”[29]
For another example, Germany has several exceptions similar in its version of the fair use doctrine.[30] In the national statute, there are at least thirteen different sections that cover various exceptions to use of copyrighted work.[31] Published works may be “reproduced, distributed, or made available to the public,” for the “purpose of illustration in teaching in education establishments.”[32] In such instances, only up to fifteen percent of the published work may be reproduced.[33] Many of the other exceptions include a similar percentage restriction, allowing only a certain amount of the published work to be reproduced without an issuing license.[34]
While the concept of fair use exceptions is not uncommon in global copyright law, scholars often consider the United States’ exceptions to be particularly board.[35] For example, the United Kingdom’s copyright laws provide a number of exceptions to copyrighted work, and “while the exceptions are restricted to particular acts, the USA has a similar doctrine of ‘fair use’ which is more flexible in its application.”[36] Such flexibility has been criticized by scholars, who say that the ambiguity creates problems for authors seeking to exclude their work from the Fair Use exception.[37] The Fair Use exception has been “one of the most important and well-established limitations on the exclusive right of copyright owners”[38] and is considered “the most troublesome [doctrine] in the whole of copyright”[39] because “the fair use guidelines are notoriously loose, leaving wide range for interpretation on the part of the author, the public, and the judiciary.”[40] As scholar Darren Hick points out, “the boundaries of the doctrine are frustratingly vague . . . [and] nothing in the doctrine, so defined, specifies whether all four factors outlined enjoy equal weight in consideration, nor whether they are conceptually exclusive of one another as considered in any particular case.”[41]
The uncertainty of the fair use exception presents an even greater challenge when considering the ubiquity of copyrights. Aforementioned, the turn of the technological age allows for greater and quicker sharing – or stealing – of original works. While such innovation has led to substantial improvements, global copyright law has failed to keep up.
“Global” Copyright Law and Uncertainty about Choice of Law
First, there is no “global” copyright law.[42] Over 150 countries – including the United States – have adopted the Berne Treaty, which attempted to create a union “for the protection of the rights of authors in their literary and artistic works.”[43] Parties to the Berne Convention enjoy uniform rights under the Convention, in addition to the rights of the author’s home nation.[44] The Berne Convention provides that authors of one country will receive the same rights in another country as that country extends to its own authors.[45] While this helps ensure that foreign authors are able to enjoy the same rights as those within the foreign country, this becomes problematic in the face of dispute resolution, particularly when multiple countries are involved.[46]
While the Berne Convention does provide uniformity for some terms, such as the duration for protection under the Convention, other terms are left to the individual party states to decide on their own.[47] For example, Article 2 of the Convention outlines types of works that are protected, such as “books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramaticomusical works; choreographic works . . . .”[48] The same Article, however, leaves it to the individual country to “determine the protection to be granted to official texts of a legislative, administrative and legal nature, and to official translations of such texts.”[49]
There are a number of similar articles that leave the decision up to the individual nation, or allow the nation to include a reservation, excluding itself from any provision.[50] While this may be the nature of international treaties, the need for uniformity is particularly needed in the event of disputes.[51]
Article 33 of the Berne Convention governs disputes between party countries.[52] The Article allows any disputes between two or more countries – which are not settled by negotiation – to be brought before the International Court of Justice (“ICJ”), unless the countries agreed on some other method of settlement.[53] While this presents the illusion of autonomy for each nation, this independence may create more problems than it resolves when it comes to choice of law. Should parties decide to take their dispute before the ICJ, the choice of law question will remain. When presented with a dispute, the ICJ looks to sources of law such as “international treaties and conventions in force; international custom; the general principles of law; judicial decisions; and the teachings of the most highly qualified publicists.”[54] However, the primary international treaty does not clearly address choice of law, nor do the governing documents of many nations.[55]
Similarly, 17 U.S.C. is also quiet on the topic of choice of law, providing for civil remedies or criminal penalties however presumably, within the boundaries of the United States.[56] However, there is no section within the Code that addresses choice of law in the event of an international dispute.[57]
Addressing Choice of Law
What happens, then, when there is a copyrighted work illegally uploaded in another country and distributed to a third country? Author Raquel Xalabarder discusses a number of solutions that have been proposed to address this choice of law issue.[58] In one instance for example, the European Union applied the law of the country where the initiating act – the act which constituted the infringement – took place.[59]
Another suggestion to resolve choice of law is lex fori, a doctrine under which the claimant chooses the forum and thus, the applicable law.[60] As Xalabarder points out, however, this would allow the claimant to choose whatever forum they wish, such as one with over-protective copyright laws.[61] This could lead to an increase of infringement cases being brought to forums with more robust laws, including cases with faulty claims.[62]
Whatever the determination, having a uniform code covering dispute resolution would help assure authors that their work will be protected on a (somewhat) global level. The ability to protect and monetize one’s work is fundamental to innovation and growth.[63] Without assurance that their creations will be protected by legal repercussions, artists and authors may cease to create and innovate, leading to a decline in creativity. Even if a global dispute resolution process is far-reaching or even impossible, it is not unrealistic for the United States Congress to pass legislation dictating how choice of law may apply or allow the U.S. Copyright Office to determine how to handle disputes regarding copyrighted works within the international sphere.
[1] See U.S. Copyright Office, Copyright in general (2024).
[2] See generally Berne Convention for the Protection of Literary and Artistic Works, Sept. 28, 1979, TRT/BERNE/001.
[3] See LegalZoom, https://www.legalzoom.com/articles/forms-of-copyright-infringement (last visited Nov. 10, 2024).
[4] Eric Fleischmann, Article 1, The Impact of Digital Technology on Copyright Law, 8 Computer L.J. 1, 1,2 (1987).
[5] U.S. Copyright Office, The Office of Policy and International Affairs (2023).
[6] Id.
[7] See generally 17 U.S.C.
[8] Id.
[9] Id. § 102.
[10] Id. § 104.
[11] Id. § 104(a).
[12] Id. § 104(b)(1); See Berne Convention for the Protection of Literary and Artistic Works.
[13] 17 U.S.C. § 104(b)(2)(3)(4)(6).
[14] Id. § 302.
[15] Id. § 302.
[16] Ben Roberts & McKenna Morgan, The Notable Properties Entering the Public Domain this Decade, License Global (Nov. 10, 2024), https://www.licenseglobal.com/trends-insights/notable-properties-entering-public-domain-decade.
[17] Cyrus Moulton, Mickey Mouse Raises Question: What is the Difference Between Copyright and Trademark?, Northeastern Global News (Nov. 10, 2024), https://news.northeastern.edu/2024/01/05/mickey-mouse-public-domain-copyright trademark.
[18] See 17 U.S.C. § 106, 107.
[19] Id. § 107.
[20] Id.
[21] See generally Copyright Act of 9 September 1965 (Federal Law Gazette I, p. 1273), as last amended by Article 25 of the Act of 23 June 2021 (Federal Law Gazette I, p. 1858), section 54-61; Ley Federal del Derechos de Autor [Constitution] Mar. 24, 1997, art. 147 – 48 (Mex).
[22] See generally Timothy Endicott & Michael Spence, Vagueness in the Scope of Copyright, 121 Law Quarterly Review, vol. 121, 2005, at 1.
[23] See generally Ley Federal del Derechos de Autor at art. 147 – 48.
[24] Id. at art. 1.
[25] See id.at art. 4.
[26] Id. at art. 147.
[27] Id.
[28] See generally id. at art. 148.
[29] Olivares, https://www.olivares.mx/relevant-amendments-to-the-mexican-copyright-law-regarding-private-copy-levy (last visited Nov. 10, 2024).
[30] See generally Copyright Act of 9 September 1965 (Federal Law Gazette I, p. 1273), as last amended by Article 25 of the Act of 23 June 2021 (Federal Law Gazette I, p. 1858), section 54-61.
[31] See id.
[32] Id. at section 60a.
[33] Id. at section 60.
[34] See id. at section 60c.
[35] See Darren Hudson Hick, Mystery and Misdirection: Some Problems of Fair Use and Users’ Rights, 56 J. COPYRIGHT SOC’Y U.S.A. 485, 488 (Winter-Spring 2009).
[36] Gowers Review of Intellecutal Property, HM Treasury 1, 38 (2006), https://perma.cc/F4XR-H2W6.
[37] See generally Hick, supra note 35.
[38] H.R. REP. No. 94-1476, at 65 (1976).
[39] Dellar v. Samuel Goldwyn, Inc., 104 F.2d 661, 662 (2d Cir. 1939).
[40] Hick, supra note 35, at 488.
[41] Id. at 489.
[42] See U.S. Copyright Office, International Issues (2024).
[43] Berne Convention for the Protection of Literary and Artistic Works, art. 1.
[44] See id. at art. 3.
[45] See id. at art. 5.
[46] See Raquel Xalabarder Copyright: Choice of Law and Jurisdiction in the Digital Age, Annual Survey of International & Comparative Law: Vol. 8: Iss. 1, Article 5 79, 83 (2002).
[47] See Berne Convention for the Protection of Literary and Artistic Works, art. 7(1).
[48] Berne Convention for the Protection of Literary and Artistic Works, art. 2.
[49] Id.
[50] See id. at art. 7, 9.
[51] See Xalabarder, supra note 46, at 83.
[52] Berne Convention for the Protection of Literary and Artistic Works, art. 33.
[53] See id. at art. 33.
[54] International Court of Justice, How the Court Works (2024).
[55] See generally Berne Convention for the Protection of Literary and Artistic Works.
[56] See 17 U.S.C. § 1203, 1204.
[57] See generally 17 U.S.C.
[58] See generally Xalabarder, supra note 46.
[59] Id. at 7; Council Directive 93/831EEC on the Coordination of Certain Rules Concerning Copyright and Rights Related to Copyright Applicable to Satellite Broadcasting and Cable Retransmission, art 1.2(b), 1993 OJ. (L 248), 15, at http://europa.eu.int/eur-lex/enllif/dat/1993/en_393LOO83.html.
[60] See Xalabarder, supra note 46, at 82.
[61] See id. at 84–85.
[62] See id. at 85.
[63] See generally Copyright Basics, University of Minnesota (2024), https://www.lib.umn.edu/services/copyright/basics.
