As a copyright expert lawyer, I get queries regarding the international copyright protection of an Indian work. For instance, one of my clients had written a script. He was aiming for a Hollywood project. An American producer had shown interest in his concept. The producer asked him to email him the script. My client had registered his script in India. Hence, He was not sure about the protection of his work outside India. He contacted me with several questions.
“My work is protected as per Indian copyright work. Will the same be protected under the copyright law of the USA?”
“Do I have to register my work as per American Copyright laws before sending the producer my work?”
“What will happen if my work gets infringed in the USA?”
He is not alone with these confusions. I understand that several artists have similar concerns regarding international copyright protection. These days artists across the globe are working on international projects. The domestic Copyright laws vary territory wise. Hence, is there a unified international copyright regime? The answer is yes! In this article, we shall be exploring the basics of the international copyright protection regime that every creative person should be aware of.
There are several international multilateral Treaties and Conventions to form a global copyright regime. The Bern Convention for the Protection of Literary and Artistic Works, 1886 (Bern Convention) is the most important international Convention in this regard. It has the largest number of signatories constituting 176 countries (Union countries). All these Union countries are bound by the Bern Convention.
There are three basic principles of the Bern Convention that provides consolidated copyright protection among all its union countries (its signatories). Let us understand each of the principles.
A. The principle of national treatment: This principle requires each Union country to grant to citizens of other Union country the same level of copyright protection as it confers to its citizens. This means if you are a citizen/habitual resident of a Union country, all other Union countries shall accord the national treatment to all your works. Further, even if you are not the citizen of any Union country, but you have published your work in a Union country, that specific work shall receive national treatment in the Union countries.
Let us understand more clearly through examples;
If a French author publishes a novel for the first time in Germany (both union countries), he is entitled to national treatment. If a non-Union author publishes his novel for the first time in Germany, he is entitled to national treatment. The protection shall be limited to the work published in Germany. If a French author publishes a novel for the first time in a non-Union country, he is entitled to national treatment because of his nationality. If a non-Union author publishes his novel for the first time in a non-Union country, he is NOT entitled to national treatment.
The only exception to the national treatment is regarding the term of protection. The term of the protection shall be limited to the country of origin. For example, both India and the USA are Contracting Parties to the Berne Convention. Suppose, the USA provides for a term of protection of 70 years after the death of the author, while India provides for 60 years only. Now, if an Indian author publishes a novel in the USA, his work will be protected in the USA for 60 years only after his death instead of 70 years which is the normal term of protection for American works. Please note that in the case of works published simultaneously in several Union countries, the protection shall be as per the country whose legislation grants the shortest term of protection.
B. The ‘principle of ‘automatic protection: According to the principle of ‘automatic protection,’ the enjoyment and the exercise of copyright must not depend or be made conditional on any formality. We can understand it better by revisiting the queries of my client at the starting of this article! He had asked, “Do I have to register my work as per American Copyright laws before sending the producer my work?”. The answer to his query lies in this principle. As per this principle, the protection of his work is not subject to any condition or formalities like registration or creation of public records or claims. Copyright protection remains automatic. However, this does not preclude the possibility where a country may choose to impose such formalities for its nationals, nor does it prevent authors from placing claims on their works, if they so wish!
C. The principle of the ‘independence of protection: According to this principle, the enjoyment and protection of copyright in a work in a Union country are independent of the existence of copyright protection in the country of origin of the work. This means the copyright protection of the work of an Indian author in the USA is independent of the fact of whether or not this work draws copyright protection in India. If the USA is providing copyright protection of such a work to its citizen, then it is bound to provide copyright the similar protection to this Indian author.
The Berne Convention is the most important convention regarding the enjoyment and protection of copyright in the international regime. We may take other important multilateral conventions like the Rome Convention, the TRIPS Agreement, the WIPO Copyright Treaty (“WCT”), and the WIPO Performances and Phonograms Treaty (“WPPT”) into consideration in the case to case wise.
I hope I have been able to address the generic issues and laws regarding international copyright protection regime. I shall be glad to address your queries if any in the comment section here!