As the world becomes increasingly globalized, authors and artists need to be mindful of their international intellectual property protection. Domestic copyright registration with the U.S. Copyright Office provides authors certain exclusive rights in America. But what about other countries? If you register for copyright protection over your book in the United States, but then someone in Paris begins photocopying and selling it, what can you do?
Fortunately, around 120 countries have signed treaties in which they agree to extend reciprocal copyright protection to works authored by nationals of the other signatory countries as well as works first published in one of the other signing countries. This reciprocal approach is commonly called "national treatment."
The two primary copyright treaties are the Berne Convention for the Protection of Literary and Artistic Works adopted in 1886 and the Universal Copyright Convention (UCC), both of which the United States has signed. To the extent the provisions of these two treaties overlap, the author or artist is entitled to the most liberal protection available, which is usually found in the Berne Convention.
Most countries of the world have ratified the General Agreement on Tariffs and Trade ("GATT"), which binds them to comply with the provisions of the Berne Convention (with the notable exception of its moral rights provision) whether or not they are already members.
The GATT treaty makes the Berne Convention by far the most significant international copyright treaty. Over the past several decades, the UCC has played an increasingly minor role in international copyright protection and litigation.
Besides establishing reciprocal protection rights, the Berne Convention also establishes the minimum protections that must be afforded, and specifies that no formalities—such as copyright notice—are required for gaining such protection.
The Berne Convention does not impose on any country a definition of what can and cannot be copyrighted, but virtually all of the signatory countries (and GATT members) will fully protect such traditional items as books, artworks, movies, and plays.
In addition, GATT requires that all members treat computer programs as literary works under the Berne Convention. Not surprisingly, this is increasingly important for technology companies that obtain copyright on software, website code, and mobile apps.
Authors seeking to invoke international protection under the Berne Convention (authors in the U.S. and in most large industrialized nations, including all nations that ratify the GATT treaty) need not apply any copyright notice to their works. In other words, you do not need to include the "©" symbol. Like in American law, copyright protection is automatic.
However, it might be a smart idea to include that symbol to scare off potential infringers.
Authors seeking to invoke international copyright protection under the Universal Copyright Convention (the relatively few countries that have not signed the Berne Convention or the GATT) must use the following notice: "© (year of publication) (author or other basic copyright owner)." For example, the correct UCC notice for this article would be: "© 2019 Nolo."
These various treaties and international regimes make it possible for U.S.-based copyright holders to attempt to protect their rights abroad. To do so, you might wish to consult with an experienced intellectual property attorney who can discuss the steps involved to pursue litigation.
However, before you begin chasing down infringers abroad, consider the practicalities of doing so.
First, remember that international litigation is even more time-consuming and expensive than domestic litigation. You would likely need to hire attorneys in the country where the infringement is taking place; if the infringement is occurring in multiple countries, that could mean multiple firms.
Second, even assuming you win a court judgment, enforcing that judgment abroad could be difficult. How will you monitor compliance? Will you really be able to ensure that the infringer has stopped the wrongful conduct? Will the lawsuits have been worth the money and effort?
There are no easy answers to these questions. However, while infringements of your copyright feel like a moral and economic transgression, you should keep costs in mind. Sometimes pursuing infringers will result in wasted time and effort, to say nothing of the legal fees—all of which might have been better spent on growing your domestic audience. Again, though, this determination must be made on a case-by-case basis, often in consultation with an attorney.
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