Re: Copyright of Government Sponsored Work

On Fri, 27 Aug 1999, Jerald Gnuschke <jerald.gnuschke[_at_]nokia.com> wrote:
>
> HOWEVER, I still believe that my original statement is
> correct. Foreign copyright laws are not enforceable in the US
> except as provided by treaty.

This is at least a partially incorrect statement and is misleading. Foreign copyright laws are enforceable in the U.S. to the extent U.S. courts choose to enforce them under conflicts of laws rules and choice of laws rules which may under certain circumstances result in the application of foreign laws, including copyright laws. Treaties may articulate choice of law rules and may provide specific substantive rules or may provide, as does Berne, for national treatment. But national treatment is not about enforcing foreign laws domestically. It is about treating foreigners like nationals -- no worse, and possibly better.

> The treaty that I believe would apply to the situation mentioned
> by Mr. Groves is the Berne Convention. As everyone knows, the
> Berne Convention guarantees national treatment as opposed to the
> old system of reciprocity. So, barring an exception in the Berne
> Convention, works of a foreign national government should get the
> same protection as works of the US government, based on the
> national treatment principle.

No. This is not how national treatment works. National treatment means that a foreign national gets treated in the U.S. like a U.S. national gets treated. It does not say what substantive law applies. Neither Berne nor the U.S. copyright act address copyrights by foreign governments in documents generated by those governments. This is not a national treatment issue, it is a substantive law issue. Berne requires that the U.S. not only grant national treatment, but that it respect foreign copyrights. This is neither national treatment nor reciprocity. Reciprocity is "I'll do it to the same extent you do it." This is more in the nature of full faith and credit or making the principle of comity into a legal standard.

The U.S. cannot generally say to another country that "you may not copyright such and such." Such an extraterritorial reach violates principles of sovereignty. The U.S., in the absence of some obligation to do so, need not enforce such a foreign law in the U.S. Or it may determine that to enforce such a law would violate the U.S. Constitution or U.S. public policy. But this is not a matter of reciprocity or national treatment.

I believe the current state of the law is that the U.S is bound to respect foreign copyrights. And that those foreign copyrights are to be enforced in the U.S. the same as U.S. copyrights -- and in this sense the foreign nationals are to receive not only national treatment (same rights as U.S. nationals) but also arguably more (under their own national laws which the U.S. is to respect and enforce in the U.S.).

Berne does not prohibit states from owning copyrights. The U.S. law does not prohibit U.S. states or foreign countries from owning copyrights. I know of nothing in the Constitution which would prohibit enforcement of foreign government-held copyrights in the courts of the U.S. I know of nothing in the nebulous realm of public policy which could be used to convince a court to violate principles of comity. Indeed, as the part quoted below demonstrates, it is a matter for each state to determine what works of that state's government are to be copyrighted.

> I've searched the Berne Convention for such an exception
> and have not found it. In fact, what I found is that the Berne
> Convention explicitly says that works of government are subject
> to national treatment.

No. The quoted portion below says nothing about national treatment. It simply says that each state is free to copyright official texts if they want to. It says nothing about how another state is to treat those texts -- which is what national treatment is about.

> Berne Convention, Article 2, 4: 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.

This provision is about what internal protection is to be granted, not about what another country does about it. Once a country decides to protect its governmental works, then the rest of Berne would seem to require other states to respect that copyright.

> Section 105 of the '76 Act says "[c]opyright protection under
> this title is not available for any work of the United States
> Government ...". Work of the United States Government is defined
> by Section 101 as "a work prepared by an officer or employee of
> the United States Government as part of that person's official
> duties."

This, of course, says nothing whatsoever about foreign governmental works.

> Under national treatment, foreign national governments are
> entitled to no more copyright protection than the US government.

No. This is not what national treatment is about. This is reciprocity. And reciprocity is not the basis of the treaty. Reciprocity says: If you do it, I will to. National treatment says: I will treat your citizens just like I treat my citizens. The U.S. law simply does not apply to foreign governments claiming copyrights -- national treatment simply means that whatever copyright you have will be enforced in the U.S. just the same as if you were a U.S. national. It does not determine the substance of what is copyrighted -- except that the foreign national cannot be given less protection than a U.S. national -- but it can be given more. Arguably national treatment doesn't even apply in the question of treatment of sovereign states, but that is another discussion altogether.

> Therefore, unless there is an exception written into the US
> copyright law, foreign NATIONAL governments have no more copyright
> than the US government.

No. See above.

--
Steven D. Jamar
Professor of Law
Director LRW Program (http://law.howard.edu/lrw/)
Howard University School of Law
2900 Van Ness Street NW
Washington, DC  20008

vox:  202-806-8017   fax:  202-806-8428
email:  sjamar[_at_]law.howard.edu

Those who fear men like laws.

Marquis de Vauvenargues, French moralist, in "Reflexions" 1746