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U.S. Copyright Relations with Central, East European, and Eurasian Nations in Historical Perspective

Published online by Cambridge University Press:  19 May 2017

Janice T. Pilch
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Abstract

In the last decade, the international copyright environment has been transformed by the rise of digital technology and by a new emphasis on intellectual property as a key to global economic growth. Recent trends have coincided with developments in the postcommunist nations of central and eastern Europe and Eurasia and have changed the rules for the use and dissemination of works originating in these nations. In this article, Janice T. Pilch examines recent developments in a historical context, from the origins of the international copyright system in the mid-nineteenth century and the establishment of U.S. copyright relations with central and east European nations in the early twentieth century, to integration within the international copyright regime today. The chronology details the application of U.S. copyright law to works from these nations, illustrating the effects of copyright restoration in the mid-1990s to foreign works that had previously been in the public domain in the United States, a development of foremost concern to scholars, educators, and librarians whose efforts depend on the continued availability of information.

Type
Articles
Information
Slavic Review , Volume 65 , Issue 2 , Summer 2006 , pp. 325 - 348
Copyright
Copyright © Association for Slavic, East European, and Eurasian Studies. 2006

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References

I wish to acknowledge the Research and Publication Committee of the Library of the University of Illinois at Urbana-Champaign, which provided support for the completion of this research.

1. Three general principles evolved over time to lay the foundation for international copyright: territoriality, national treatment, and minimum protection. The territoriality principle holds that a country's law has effect only within its borders and does not apply outside its borders. National treatment is the principle that each country signing the convention grants the same protection to citizens of other countries as it grants to its own nationals. It is embodied in Article 5(1) of the Berne Convention. The principle of minimum protection is associated with Berne Article 7(1), which obligates member countries to extend a minimum copyright term of life of the author plus fifty years. For a detailed explanation of these principles, see Goldstein, Paul, International Copyright: Principles, Law, and Practice (Oxford, 2001), 61–88 Google Scholar.

2. Stephen P. Ladas, The International Protection of Literary and Artistic Property, vol. 1, International Copyright and Inter-American Copyright, vol. 2, Copyright in the United States of America and Summary of Copyright Law in Various Countries (New York, 1938), 1:45.

3. Ibid., 1:22.

4. Ibid., 1:44.

5. Ibid., 1:44–46; Goldstein, International Copyright, 19.

6. The two conventions were apparently an unwelcome imposition on Russia, for reasons stemming from the view that they were unequal and were forced upon Russia after her defeat in the Crimean War, that they favored the aims of the foreign parties because of the market in Russia for French literature, and that French literary agents engaged in unfair business practices in Russia. Ladas, International Protection, 1:47–50, 50nl06; Elst, Michiel, Copyright, Freedom of Speech, and Cultural Policy in the Russian Federation (Leiden, 2005), 67 Google Scholar.

7. Ladas, International Protection, 1:71–83; Sterling, J. A. L., World Copyright Law: Protection of Authors’ Works, Performances, Phonograms, Films, Video, Broadcasts and Published in National, International and Regional Law (London, 1998), 13–14 Google Scholar; Goldstein, International Copyright, 19–20.

8. Actof31 May 1790, U.S. Statutes at Large I (1790): 124.The 1790 Copyright Act initially applied only to maps, charts, and books. It required registration of the title of the work, prior to publication, in the clerk's office or district court where the author or copyright holder resided; publication of the record of copyright in one or more newspapers over the course of four weeks within two months of registration; and deposit of one copy of the work in the office of the secretary of state within six months of publication. It granted an initial fourteen-year copyright term, with a right to renewal for an additional fourteen years if the author was still living during the last year of the initial term. In 1831 the law was amended to allow for a fourteen-year renewal by widows and children of deceased authors.

9. Peter K. Yu, “The Copyright Divide,” Cardozo Law Review 25 (November 2003): 341 n69, 420nn603–4, 421.

10. Act of 3 March 1891, U.S. Statutes at Large 26 (1891): 1106.

11. Ladas, International Protection, 2:836; Patry, William F., Copyright Law and Practice (Washington, D.C., 2000), chap. 1Google Scholar, “Statutory Revision” (also available at http://digital-law-online.info/patry/patry6.html, last accessed 30 January 2006); United States Copyright Office, International Copyright Relations of the United States, Circular 38a (Washington, D.C., August 2003) (also available at http://www.copyright.gov/circs, last accessed 30 January 2006).

12. Act of 3 March 1891, U.S. Statutes at Large 26 (1891): 1106, chap. 565 §3.

13. Act of 8 July 1870, U.S. Statutes at Large 16 (1870): 198. The scope of the Copyright Act of 1870 was broader, covering books, maps, charts, dramatic and musical compositions, engravings, cuts, prints, photographs or negatives, paintings, drawings, chromos, statues, statuaries, and models and designs intended to be perfected as works of fine art.

14. Act of 4 March 1909, U.S. Statutes at Large 35 (1909): 1075.

15. Proclamation of 9 April 1910, U.S. Statutes at Large 36 (1910): 2685.

16. For Poland, Proclamation of 14 February 1927, U.S. Statutes at Large 44 (1927): 2634; for Czechoslovakia, Proclamation of 27 April 1927, U.S. Statutes at Large 45 (1927): 2906; for Romania, Proclamation of 14 May 1928, U.S. Statutes at Large 45 (1928): 2949; for Hungary, Copyright Convention between the United States and Hungary, proclaimed 15 October 1912, U.S. Statutes at Large 37 (1912): 1631. See Ladas, International Protection, 2:837–39.

17. Further amendments were made after the 1909 Copyright Act was enacted. The 1914 amendment reduced the deposit requirement for works of foreign authors published abroad from two copies to one copy. In 1926 the manufacturing clause was changed to exclude works printed or produced in the United States by processes other than typography, lithography, or photoengraving, thus allowing typewritten or mimeographed works to be protected. Further changes were made in 1949 in light of the difficulties postwar Europeans faced in complying with U.S. requirements. A major revision to the U.S. copyright law, made in 1955 in connection with U.S. adherence to the Universal Copyright Convention (UCC), eliminated the domestic manufacturing requirement for works by nationals of UCC member nations or works first published in UCC member nations, provided that such published works bore a proper notice affixed to the work. U.S. entry into the Berne Convention was contingent on the elimination of the manufacturing clause. It remained in the copyright law, however, until proposals to extend it were defeated in 1986. See Pantry, Copyright Law and Practice, chap. 1, “Amendments to the 1909 Act,” and “Amendments to the 1976 Act”; Patry, William F., Latvian's The Copyright Law, 6th ed. (Washington, D.C., 1986), 11 Google Scholar.

18. Patry, Copyright Law and Practice, chap. 1, “Amendments to the 1909 Act.”

19. The meaning of reproduction in this context is an original art work that is based on another work yet embodies sufficient originality to obtain copyright.

20. Act of 24 August 1912, U.S. Statutes at Large 37 (1912): 488. This amendment was commonly referred to as the Townsend Amendment.

21. Act of 15 October 1971, Public Law 92–140, U.S. Statutes at Large 85 (1971): 391. Until this amendment took effect on 15 February 1972, sound recordings were protected by state common law and criminal statute, but not by federal copyright law. It is important to note that this category includes recorded performances of works, but not the original musical, dramatic, poetic, or other expressions used as the basis for the sound recordings; these are eligible for copyright protection under the categories of musical, literary, or dramatic works.

22. Act of 6 October 1917, Public Law 65–91, U.S. Statutes at Large 40 (1917): 411; amended by Act of 5 June 1920, Public Law 66–252, U.S. Statutes at Large 41 (1920): 977, and Act of 27 February 1921, Public Law 66–332, U.S. Statutes at Large 41 (1921): 1147.

23. Ladas, International Protection, 2:839–40; De Wolf, Richard C., An Outline of Copyright Law (Boston, 1925), 179-91, 257–59, 281–82Google Scholar.

24. This power was granted to the president by the Act of 25 September 1941, Public Law 77–258, U.S. Statutes at Large 55 (1941): 732. Patry, Copyright Law and Practice, chap. 1, “Amendments to the 1909 Act.”

25. Latvia acceded to the Berne Convention with effect from 15 May 1937, and Estonia acceded to Berne with effect from 9June 1927. After losing their independence to the USSR in 1940 and regaining it in 1991, Estonia, Latvia, and Lithuania joined the Berne Convention as newly independent states. Although a detailed historical treatment of copyright for the Baltic nations is beyond the scope of this article due to its complexity, it is important to know that today copyright relations with the United States are governed by the Berne Convention. Copyright restoration applies to eligible works produced during the years of independence preceding World War II and as well as dining the Soviet era and since independence in 1991.

26. Conference on Security and Co-operation in Europe, Final Act (Helsinki, 1 August 1975), http://www.osce.org/documents/mcs/1975/08/4044_en.pdf (last accessed 30 January 2006).

27. Schwartz, Alan U., “The State of Publishing, Censorship and Copyright in the Soviet Union,” Publishers Weekly 203, no. 3 (15 January 1973): 32 Google Scholar.

28. Bloom, Harry, “The End of Samizdat? The Soviet Union Joins the Universal Copyright Convention,” Index on Censorship 2, no. 2 (Summer 1973): 4 CrossRefGoogle Scholar.

29. These include Baumgarten, Jon A., U.S.-USSR Copyright Relations under the Universal Copyright Convention (New York, 1973)Google Scholar; Stefan Congrat-Butlar, comp. and ed., The U.S.S.R. Accession to the Universal Copyright Convention (New York, 1973); Simons, William B., Soviet Membership in the Universal Copyright Convention: Will It Really Be as Bad as All That? (Northfield, Vt., 1974)Google Scholar; Newcity, Michael, Soviet Adherence to the Universal Copyright Convention: A Tool of Censorship? (Washington, D.C., 1973)Google Scholar; Ross, Lee Jeffrey Jr., “Soviet Accession to the Universal Copyright Convention: Possible Implications for Future Foreign Publication of Dissident Works,” Georgia Journal of International and Comparative Law 4 (1974): 404-21Google Scholar; Benjamin, Curtis G., “Some Observations on Certain Consequences of the Soviet Union's Accession to the UCC,” Bulletin of the Copyright Society of the U.S.A. 20, no. 6 (August 1973): 391-97Google Scholar; “Moscow Amends Law on Copyright,” New York Times, 18 March 1973, 5; “Publishers Fearful for Soviet Authors,” New York Times, 22 March 1973, 55; Wolfgang Saxon, “U.S. Authors Ask a Bar to Soviet,” New York Times, 25 March 1973, 17; Hedrick Smith, “6 Soviet Intellectuals Warn of Danger in Moscow's Acceptance of World Copyright Law,” New York Times, 28 March 1973, 15; Anthony Astrachan, “Concern Voiced in U.S. at Soviet Copyright Law,” Washington Post, 23 March 1973, A14. See also Elst, Copyright, 84–85.

30. Bill to Amend Section 9 of Title 17 of the United States Code, S. 1359, 93d Cong., lstsess’ (26 March 1973); Bill to Protect Copyrights of Foreign Authors in the United States, HR 6214,93d Cong., lstsess. (28 March 1973).S. 1359 was introduced by Sen. John L. McClellan to provide that a U.S. copyright secured by a foreigner would vest the copyright in the author of the work, his executors or administrators, or his voluntary assigns, regardless of any law of a foreign state that purported to divest the author of the U.S. copyright. H.R. 6214 was introduced by Rep. Jonathan B. Bingham for the same purpose. Among the opponents of the USSR's accession to the UCC were Carl and Ellendea Proffer, scholars and founders of Ardis Publishers in Ann Arbor, Michigan. Arguing that the consequences for Russian literature would be “catastrophic,” they strongly opposed the Soviet decision and criticized the proposed congressional amendments for being too weak to counter the potential harm to Russian literary culture. Congrat-Butlar, comp. and ed., U.S.S.R Accession, 14–15.

31. Congrat-Butlar, comp. and ed., U.S.S.R. Accession, 15.

32. The Copyright Act of 1976 (Public Law 94–553, U.S. Statutes at Large 90 [1976]: 2541) is contained in title 17 of the United States Code. It took effect on 1 January 1978 and has been amended numerous times since its adoption. The current law is available on the website of the U.S. Copyright Office, http://www.copyright.gov/titlel7 (last accessed 30 January 2006).

33. National Commission on New Technological Uses of Copyrighted Works, Report of the National Commission on New Technological Uses of Copyrighted Works (Washington, D.C., 1978); Pa try, Latvian's The Copyright Law, 59.

34. The Architectural Works Copyright Protection Act amended section 102(a) by adding paragraph 8. Act of 1 December 1990, Public Law 101–650, U.S. Statutes at Large 104 (1990): 5089.

35. Fair use is a doctrine unique to U.S. law, constituting a general limitation on the exclusive rights of copyright holders, for purposes such as criticism, commentary, news reporting, teaching, scholarship, or research. It involves an assessment of four factors to determine whether a particular use is an infringement of copyright: purpose and character of the use, nature of the work, amount and substantiality of the portion being used, and effect of the use on the potential market for or value of the copyrighted work. The fair use doctrine applies to all types of works, published and unpublished, in all formats, but it is broad and ambiguous, being applied on a case-by-case basis as a defense against copyright infringement, rather than serving as a categorical exemption in the law.

36. The United States implemented Berne in the 1988 Berne Implementation Act. Act of 31 October 1988, Public Law 100–568, U.S. Statutes at Large 102 (1988): 2853.

37. Registration is not mandatory for a work to be copyrighted, but it is a prerequisite for filing an infringement suit and for claiming statutory damages in an infringement suit. Also, it is useful as a means of obtaining a permanent record of the copyright, and it eases the permissions process for anyone seeking to identify or locate the copyright holder.

38. Although Turkmenistan has not signed the Berne Convention, it remains bound by the UCC from its obligations as a former member of the Soviet Union. United States Copyright Office, International Copyright Relations of the United States, Circular 38a (Washington, D.C., June 2004), n17, http://www.copyright.gov/circs (last accessed 30 January 2006). See also Maggs, Peter B., “Post-Soviet Law: The Case of Intellectual Property Law,” The Harriman Institute Forum 5, no. 3 (November 1991): 6–7 Google Scholar.

39. The dates these nations entered into the Berne Convention are as follows: Albania—6 March 1994, Armenia—19 October 2000, Azerbaijan—4 June 1999, Belarus— 12 December 1997, Bosnia and Herzegovina—1 March 1992, Bulgaria—5 December 1921, Croatia—8 October 1991, Czech Republic—1 January 1993, Estonia—26 October 1994, Georgia—16 May 1995, Hungary—14 February 1922, Kazakhstan —12 April 1999, Kyrgyzstan—8July 1999, Latvia—11 August 1995, Lithuania—14 December 1994, Former Yugoslav Republic of Macedonia—8 September 1991, Republic of Moldova—2 November 1995, Poland—28 January 1920, Romania—1 January 1927, Russian Federation—13 March 1995, Serbia and Montenegro—27 April 1992, Slovakia—1 January 1993, Slovenia— 25 June 1991, Tajikistan—9 March 2000, Ukraine—25 October 1995, and Uzbekistan—19 April 2005. As mentioned above, Czechoslovakia was a party to the treaty from 22 February 1921, the former Yugoslavia joined on 17 June 1930, and Estonia and Latvia joined during their years of independence, on 9June 1927 and 15 May 1937, respectively.

40. Due to differences of opinion among U.S. lawmakers regarding the interpretation of Article 18, the Berne Implementation Act did not include a provision for protecting preexisting works in the public domain in the United States, and because the terms of international treaties require implementation in U.S. law before they lake effect, Article 18 was not implemented when the United States acceded to Berne. However, the TRIPS Agreement requires the United States to fulfill its obligations with respect to Berne as a member of the World Trade Organization. TRIPS obligations took effect for the United States by presidential proclamation on 1 January 1996. This is why the date of copyright restoration is seven years after the date of U.S. entry into Berne. See Patry, William F., Copyright and the GATT: An Interpretation and Legislative History of the Uruguay Round Agreements Act (Washington, D.C., 1995), 25–28 Google Scholar, and Appendix N, N-3–N-4. See also Proclamation 6780 of 23 March 1995, U.S. Statutes at Large 109 (1995): 1760.

41. Act of December 1994, Public Law 103–465, U.S. Statutes at Large 108 (1994): 4809.

42. The effective date of copyright restoration under section 514 of the URAA has been the subject of controversy, with some legal specialists of the opinion that, along with the other seventeen Uruguay Round agreements, the TRIPS Agreement entered into force on 1 January 1995, and the date of restoration was, accordingly, 1 January 1995. Notwithstanding the position of the U.S. Copyright Office that section 514 of the URAA came into effect on 1 January 1996 and President Clinton's proclamation of 23 March 1995 setting the date of 1 January 1996 as the date on which the obligations of the TRIPS Agreement were to take effect for the United States, there is substantial reason to hold that the date of 1 January 1995 should have been the date that copyright restoration took effect. Patry, Copyright and the GATT, 30–36, and Appendix N, N-3–N-4; Proclamation 6780 of 23 March 1995, U.S. Statutes at Large 109 (1995): 1760.

43. Berne Convention for the Protection of Literary and Artistic Works, http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html (last accessed 30 January 2006). Works that have fallen into the public domain in the country of origin because their term has expired will not be protected under Article 18, but works that may have fallen into the public domain for reasons other than expiration of the copyright term, such as noncompliance with formalities for notice, registration, or renewal, will be restored.

44. 17U.S.C. l04A(g), 104A(h).

45. Steven Shrybman, “Information, Commodification and the World Trade Organization” (conference paper, IFLA Council and General Conference, Jerusalem, 13–18 August 2000), http://www.ifla.org/IV/ifla66/papers/176–148e.htm (lastaccessed 30 Tanuary 2006).

46. As of 11 December 2005.

47. Jonathan Fowler, “Russian WTO Membership Talks on Course for Year-end Conclusion, Chief Russian Negotiator Says,” Associated Press, 17 February 2005; ITAR-TASS News Agency, “Russia Economic Ministry Hopes for WTO Membership in 2006,” 16 March 2005.

48. Website of WIPO, http://www.wipo.int/about-wipo/en/gib.htm (last accessed 30 January 2006). See Agreement between the World Intellectual Property Organization and the World Trade Organization of 22 December 1995, http://www.wipo.int/treaties/en/agreement/trtdocs_wo030.html (last accessed 30 January 2006).

49. For a discussion of the practical applications of current copyright laws, see Pilch, Janice T., “Understanding Copyright Law for Slavic, East European, and Eurasian Materials,” Slavic and East European Information Resources 4, no. 1 (2003): 75–101 CrossRefGoogle Scholar; Pilch, Janice T., “International Copyright for Digital Collections of Russian Material: U.S. and U.K. Law and Practice,” Solanus: International Journal for Russian and East European Bibliographic, Library and Publishing Studies 17 (2003): 24–49 Google Scholar; Pilch, Janice T., “Current Copyright Legislation of the CIS Nations and Its Relevance for U.S. Library Collections: The Laws of Russia, Ukraine, Belarus, and Moldova,” Slavic and East European Information Resources 5, no. 1-2 (2004): 81–122 CrossRefGoogle Scholar; Pilch, Janice T., “Current Copyright Legislation of the CIS Nations and Its Relevance for U.S. Library Collections: The Laws of Armenia, Azerbaijan, and Georgia,” Slavic and East European Information Resources 6, no. 1 (2005): 101-41CrossRefGoogle Scholar; and Pilch, Janice T., “Collision or Coexistence? Copyright Law in the Digital Environment,” Slavic and East European Information Resources 6, no. 2-3 (2005): 79–116 CrossRefGoogle Scholar.

50. Helpful charts summarizing U.S. copyright terms have been produced by Laura N. Gasaway, at http://www.unc.edu/~unclng/public-d.htm (last accessed 30 January 2006), and Peter B. Hirtle, at http://www.copyright.cornell.edu/training/Hirtle_Public_Domain.htm (last accessed 30 January 2006).

51. The convention notice consisted of three elements: the copyright symbol, the name of the copyright proprietor, and the year of first publication.

52. See United States Copyright Office, How to Investigate the Copyright Status of a Work, Circular 22 (Washington, D.C., December 2004) and United States Copyright Office, The Copyright Card Catalog and the Online Files of the Copyright Office, Circular 23 (Washington, D.C., July 2002), both at http://www.copyright.gov/circs (last accessed 30 January 2006).

53. The term of 95 years is derived from the basic copyright term of 28 years for works published from 1923 to 1977, plus automatic renewal terms totaling 67 years for foreign works eligible for copyright restoration. This includes the renewal term of 28 years set in the 1909 law, an additional 19-year renewal term provided in the 1976 law, and an extension of 20 years from the Sonny Bono Copyright Term Extension Act of 1998.

54. Law of the Russian Federation on Copyright and Neighboring Rights No. 5351–1, dated 9July 1993, as amended by Federal Law No. 110-FZ, on the Introduction of Amendments and Additions to the Code of Criminal Procedure of the RSFSR, the Code of the RSFSR on Administrative Offenses and the Law of the Russian Federation on Copyright and Neighboring Rights, dated 19 July 1995; and by Federal Law No. 72-FZ, dated 20 July 2004, with effect from 28 July 2004 (except for changes to Articles 16, 37, 38, and 39, which will take effect on 1 September 2006), http://www.law.copyright.ru/federal-1451.html (last accessed 30 January 2006).

55. Council Directive 93/98/EEC of 29 October 1993 Harmonizing the Term of Protection of Copyright and Certain Related Rights (OJ L 290, 24.11.1993, 9–13), and Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the Harmonization of Certain Aspects of Copyright and Related Rights in the Information Society (OJ L 167, 22.6.2001, 10–19), http://europa.eu.int/eur-lex/lex/JOIndex.do?ihmlang=en (last accessed 30 January 2006).

56. Pilch, Janice T., “Fair Use and Beyond: The Status of Copyright Limitations and Exceptions in the Commonwealth of Independent States,” College and Research Libraries 54, no. 6 (November 2004): 468–504 Google Scholar. See also Peter Jaszi, “Public Interest Exceptions in Copyright: A Comparative and International Perspective” (conference paper, Correcting Course: Rebalancing Copyright for Libraries in the National and International Arenas, Columbia University, New York, 6 May 2005), http://correctingcourse.columbia.edu/paper_jaszi.pdf (last accessed 30 January 2006).