Re: Copyright of Government Sponsored Work

On Sun, 29 Aug 1999, Steven D. Jamar <sjamar[_at_]law.howard.edu> wrote:
>
> 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.

I have never heard of a case where a US court applied foreign copyright law to preempt the '76 Copyright Act. Please provide a cite, as I would be interested in learning the court's rationale.

> Treaties may articulate choice of law rules and may provide specific
> substantive rules or may provide, as does Berne, for national
> treatment.

Correct.

> But national treatment is not about enforcing foreign laws
> domestically. It is about treating foreigners like nationals --
> no worse, and possibly better.

Exactly.

> > 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.

Loose language on my part. As Mr. Jamar pointed out above, national treatment is about equal application of the law to nationals and foreigners.

> Neither Berne nor the U.S. copyright act address copyrights by
> foreign governments in documents generated by those governments.

I believe Mr. Fishman has proven us both wrong on this point.

> 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.

If you mean ALL foreign copyrights, where in Berne does it say "respect all foreign copyrights"? This would be an unacceptable abrogation of domestic authority over copyright. Regardless, I'd like to point out that "respect" and "enforce" are not the same thing.

> 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.

No. Berne does NOT stand for granting full faith and credit to foreign copyright law. Berne is more nearly a recognition of the sovereignty of domestic law. If Berne actually stood for replacing domestic copyright law by giving full faith and credit to all foreign copyright law, no countries would have signed Berne.

> 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.

Agreed.

> The U.S., in the absence of some obligation to do so, need not enforce
> such a foreign law in the U.S.

Agreed.

> 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 don't agree. When a foreign copyright is determined to be invalid because it violates the US constitution or US public policy, it seems to me that the foreign copyright is getting the same protection under US law that an equivalent domestic copyright would receive (and thus is receiving 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.).

I don't agree. Absent implemented treaties, I don't think that the US is under any obligation to enforce foreign copyright laws in the US. The only copyright that anyone has in the US is granted under US law, not foreign law.

> Berne does not prohibit states from owning copyrights. The U.S.
> law does not prohibit U.S. states or foreign countries from owning
> copyrights.

Correct. The US law also doesn't prohibit the US government 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.

How about "to promote the progress of science and the useful arts"? I'm not convinced that allowing a foreign government to copyright its laws and regulations promotes the progress of science. I should remind everyone that some posts to this thread have stated that foreign laws are not copyrightable in the US. There's a better argument for copyright in the nautical charts (discussed by James Brennan in an earlier post to this thread) but the counter is that the Crown certainly would have invested in the nautical charts regardless of US copyright, therefore granting copyright isn't promoting progress.

> I know of nothing in the nebulous realm of public policy which
> could be used to convince a court to violate principles of comity.

How about the idea-expression merger doctrine?

> 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.

Which sets the minimum floor for copyright of a foreign government's works.

> > 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.

I'm not sure what you're trying to say here. Rather than explicitly set out what copyright is due a government work, Berne has left it to national law. Therefore when Country A tries to assert copyright in Country B, the minimum floor guaranteed by national treatment applies.

Remember, Berne also sets some minimum standards. By explicitly declaring that copyrights in works of government are subject to local legislation, Berne is saying that, absent other obligations, national treatment (not the minimum standards of Berne) must be used to determine copyright in works of government.

> > 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.
 

The rest of Berne only has to respect that copyright to the point that the rest of Berne recognizes copyright in governmental works. Berne certainly does not require other states to recognize foreign law as superior to domestic law which I understand you to have stated. If Country A has no copyright in a domestic governmental work then there is no obligation under Berne for Country A to grant copyright protection to a governmental work of Country B. Period.  

> > 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.

Exactly. What it does is set the national treatment or minimum floor below which copyright protection should not fall, given the US's obligations under Berne as codified in the Copyright Act. So we have established that the minimum floor is no protection for national government works. The remaining question is: where above the minimum floor does the actual protection granted to foreign government works exist?

As Mr. Fishman pointed out in another post, the answer is that the actual protection granted to works of foreign governments appears to be set forth in Section 104(b)(1) of the Copyright Act.

> > 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 exactly what national treatment is about. Treating foreign copyright holders at least as well as domestic copyright holders. National treatment sets a minimum floor for protection of foreign copyright.

> This is reciprocity.

No it isn't. Please note that I used the words "are entitled to" which implies the minimum floor set by national treatment, not "get" which implies 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.

Correct.

> 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.

I'm sorry but US law does determine what is subject to copyright in the United States, including works of foreign governments. IF a work is subject to copyright protection in the US, Berne says that the foreign national must be given at least the same protection as the domestic copyright holder (which Mr. Jamar points out above). We already established above that the works of the US national government are not entitled to copyright protection in the US. By analogy and application of the floor set by national treatment, the works of foreign national governments would probably not be entitled to copyright either, barring an exception in US law that applies to foreign governments. However, Section 104(b)(1) of the Copyright Act seems to be such an exception.

> Arguably national treatment doesn't even apply in the question
> of treatment of sovereign states, but that is another discussion
> altogether.

Interesting point that I hadn't considered. Please elaborate.

> > 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.

My original statement is not precisely worded although I believe it was clear when read in context with my other comments. Change my original statement to say "are entitled to no more copyright than the US government."

National treatment sets the minimum floor for rights in government works. In the US, the national government disclaims, for public policy reasons, copyright in its works. While I see no reason that the works of foreign national governments should receive copyright (in effect receiving better benefits than the US government, permitted by national treatment as pointed out by Mr. Jamar above) apparently Congress did.

Does anyone know what Nimmer has to say about this subject? Paul Geller, are you out there?

Jerald Gnuschke
<jerald.gnuschke[_at_]nokia.com> Received on Mon Aug 30 1999 - 23:01:27 GMT