Re: Copyright and conflicts of law

Nikki Miller <nmiller[_at_]chq.byu.edu> wrote:
>
> I have a copyright/conflicts of law question. I understand that the
> sweat of the brow doctrine, rejected by the U.S. Supreme Court in
> Feist, is still followed in the UK. Is it true then that you could
> extract the purely factual information from any copyrighted
> compliation in the U.S. (so long as you didn't reproduce the
> selection and arrangement), even if it was created by a British
> author and published in the UK? If so, would it constitute copyright
> infringement under UK copyright law if you then distributed,
> displayed, and/or reproduced the extracted information in the UK?
> Would the extracted information constitute a "lawfully obtained copy"
> because it was lawfully created under U.S. law (though not under
> British copyright law) and be excepted from the display and
> distribution rights in the UK under the first sale doctrine?

The principle is national treatment. If the copying in question is permissible under US law, then in the US it does not infringe, regardless of the copyright law of the country of origin of the work. If a second work is lawfully made in the US, which had it been made in the UK would have been an infringing copy is subsequently exported to the UK, it would become an infringing copy upon importation to the UK. This would apply regardless of the nationality of the rightsholder: thus a copy made in the US from a US compilation could infringe the copyright in the UK and a US rightsholder could sue the importer in the UK.The same principle applies in reverse in other areas. For example, the British Library makes and supplies copies under the library privilege provisions of UK law, but these copies (probably) become infringing copies when they are imported into the US, because the US library privilege provisions (sec.108) are not comparable to the UK provisions. The British Library now pays a copyright fee on all copies supplied to the US.

Incidentally, "sweat of the brow" is far from thriving in the UK. It will be effectively killed off as a copyright doctrine with the implementation of the EC's Databases directive; the intention being that database producers' investment should thereafter be protected by the new, lesser sui generis database right.

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the one, that men (and women)  of ability, who have employed their time 
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 -  per  Mansfield LJ in Sayre v. Moore, 1785.