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Re: [Fwd: Re: Concerns about works created by the US government]

On 4/11/05, Dave Hornford <OSS@hornfordassociates.com> wrote:
> A work authored by the American Government, and therefore in the public
> domain in the United States is in effect in the public domain in Italy, or
> equivalent of copyright expired. The work does not qualify for an Italian
> copyright, it was not created in Italy or by an Italian citizen abroad (I
> don't know if Italian law provides Italian copyright for works authored by
> Italians abroad, but some countries do); and it has no American copyright
> protection available to be extended to Italian jurisdiction through the
> various copyright conventions.

A "work of the US government" is not public domain, as cited by
Florian from the House report.  Berne Convention 2.4 permits member
countries to deny some such works protection:  "It shall be a matter
for legislation in the countries of the Union to determine the
protection to be granted to official texts of a legislative,
administrative and legal nature, and to official translations of such
texts."  But other works of the US Government (such as software) may
not be excluded from copyright protection by Italian law just because
17 USC 105 denies the US Government "copyright protection under this
title" domestically.

However, note from Article 5.4(a): the country of origin is, "in the
case of works first published in a country of the Union, that country;
in the case of works published simultaneously in several countries of
the Union which grant different terms of protection, the country whose
legislation grants the shortest term of protection".  It's possible
that Article 7.8 therefore permits Italian law to deny copyright
protection to anything denied copyright protection in its country of
origin.  That may depend on whether the Italian implementation is
written to limit protection on a foreign work to "the term of its
protection in its country of origin" or "the term of protection, in
its country of origin, of works of its type".  Case law, anyone?

> (And, if it comes up before you get into
> detailed arguments on proving this point ask your Italian court to rule the
> proper venue is the author's home jurisdiction, the United States, where
> there is no copyright protection for the work)

I think (IANAL) that you are less likely to succeed with "forum non
conveniens" than with an insistence on the court's applying your
preferred choice of governing law (assuming the facts fit).  Even that
doesn't always work, especially across the common law / civil code
divide (see Heritiers Huston v. Turner), and may backfire if the
legislative record demonstrates (as it does) that the US government
intended to retain copyright in foreign jurisdictions.

> The extended copyright
> protection afforded through the various conventions enable the US-based
> author to go to court to protect rights they have in the US that also exist
> in Italy. Before the last part is used as a jumping off point let me give an
> example: the US grants life+70 or 75 copyright to photographs to the
> photographer, while Canada grants 50 years from then end of the year the
> photograph was taken to the owner of the negative. As a holder of Canadian
> photograph copyrights I cannot enforce copyright protection of my
> photographs in the US after they expire in Canada. Nor can an American
> copyright holder enforce photographic copyrights in Canada 51 years after a
> US copyrighted photograph was taken (and if the American photographer didn't
> own the negative they may not have standing in Canada). In the first case
> there are no Canadian rights available for protection under US copyright law
> through a convention, in the latter case there are no rights available for
> protection in Canada.

Your conclusions are, I think, correct, but the reasoning isn't quite.
 The handling of different terms in venue and country of origin isn't
a matter of logic, it's simply specified by treaty (and national
implementations).  As regards the term of protections, see Berne
Convention Articles 5 and 7.  The critical provision is Article 7.8: 
"In any case, the term shall be governed by the legislation of the
country where protection is claimed; however, unless the legislation
of that country otherwise provides, the term shall not exceed the term
fixed in the country of origin of the work."

Incidentally, the treaty minimum for photographs is 25 years from
creation, but many countries grant longer periods.  I'm surprised by
your claim that an American photographer would have to "own the
negative" in order to obtain standing in a Canadian court.  I would
have thought that in Canada copyrights are logically separable from,
and not automatically conveyed along with, negatives and "master
tapes", just as in the US (cf. Harris v. Emus, Ninth Circuit 1984).

> For further research into international copyright the most relevant
> treaties are administered by the World Intellectual Property Organization
> (WIPO) - Berne & UCC if memory serves, the World Trade Organization (WTO) -
> TRIPS from the Uruguay round of GATT if memory serves. Then for Canada, the
> US, Chile, Israel, Mexico & I believe Australia NAFTA & associates FTA's
> tend to have some importance. In a complex commercial case expect to see
> claims filed under NAFTA & GATT, and claims filed with their dispute
> resolution/quasi judicial bodies. These NAFTA & GATT bodies can issue
> rulings under NAFTA and GATT, where Berne simply affords national
> reciprocity. To clarify, Berne grants rights under the effective national
> law (& specifies minimum protections and common definitions), where NAFTA &
> GATT can grant rights under these agreements. Rights beyond or in conflict
> with national law.

Yep, it can get messy internationally -- but rarely does unless "forum
non conveniens" gets misapplied.  Happens all the time in
international "unfair competition" claims and maritime law (especially
when insurers fight it out over who takes the hit for lost or damaged
cargo), but seems (IANAL) to be pretty infrequent in copyright cases. 
Do you have a precedent or three to recommend?

> To mess with this further there isn't one Berne and
> different countries can subscribe to different Berne's (although most are
> subscribing to '71). The Berne was revised in Berlin in 1908, Rome in 1928,
> Brussels in 1948, Stockholm in 1967, and Paris in 1971. If memory serves
> Canada signed Berne '71 in '96 with reservations for translation to French,
> similar to the developing world sections that limited copyright protection
> when a work was being translated into a local language.

Details of which version of the Berne Convention applies to each
member nation are at
http://www.wipo.int/treaties/en/ShowResults.jsp?treaty_id=15 .  The
1971 Paris Act seems to be pert'near universal.

- Michael

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