Q&A: International Copyright

Q.   Is my U.S. copyright valid in other countries?  If not, how do I gain copyright protection in another country?

A.   In most foreign countries, your U.S. copyright will be protected without any additional steps, despite the fact there exists no true “international copyright.”  Historically, each country has had its own system for protecting intellectual property rights such as copyright, trademarks, and patents.  To protect your copyright in say, Portugal, you would have had to comply with Portugal’s copyright laws.  However, in the last fifty years this has changed as a result of international copyright treaties and conventions, including the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention), the Universal Copyright Convention (UCC), the World Intellectual Property Organization (WIPO) copyright treaty, and the GATT (General Agreement on Tariffs and Trade).

The most important of these treaties is the Berne Convention (https://www.wipo.int/treaties/en/ip/berne/summary_berne.html), which the U.S. adopted in 1989.  There are about 100 other countries that also are members, including almost all industrialized countries.  Under this treaty, all member countries must give copyright protection to foreign nationals of other member countries for at least the life of the author plus 50 years (with exceptions for certain types of works, such as film, art, and joint authorship).   In addition, copyright must be protected even for authors who are nationals of countries that are not members of the Convention if the work was published within thirty days of first publication in a member country.

The copyright must be automatic, that is, without any formal registration requirement or copyright notice. (This is the reason U.S. law was amended to make registration and notice optional.)  Nevertheless, in the U.S., you always should include a copyright notice to eliminate the defense of innocent infringement, and — unlike other countries — in the U.S. registration is required for enforcement as well as allowing additional remedies such as statutory damages and attorneys’ fees.

The UCC (which the U.S. joined in 1955) preexisted the Berne Convention but is of limited importance today, as most countries who were members of the UCC now are members of the Berne Convention, and all members of the Berne Convention also became party to the UCC, so that their copyrights would exist in non-Berne convention states.  For the few countries that are members of the UCC but not the Berne Convention, the UCC provides protection for foreign copyrights for a minimum of 25 years from the date of publication and typically 25 years from the author’s death.

Only if a country is not a signatory to any of the copyright treaties (there are some, primarily in the third world), and has no “bilateral” copyright treaty with the U.S. would you have to comply with the local copyright law.  Keep in mind, however, that having copyright and enforcing copyright are different issues.  China and Russia, for instance, both are members of the Berne Convention and have bilateral copyright treaties with the U.S., but suing for infringement under their laws is largely an expensive exercise in futility that discourages even major music and software companies.

©2011 Daniel N. Steven