Universal copyright: a step in the wrong direction?

The legal theory of rights states that a right is a legal benefit granted to a subject by the sovereign authority by means of its statutory or declaratory process. This implies that a legal right is necessarily restricted to the sphere of influence of the sovereign authority and is also limited to the extent granted by the sovereign.

These rights are often referred to as statutory rights. At the other end of the spectrum are natural rights: those that are inherent in man and universal in nature. These rights are not granted by any sovereign authority and have been referred to as the ‘inalienable’ rights of man.

While natural rights are not granted or contingent upon, in theory, any legislative process, their enforcement is a different matter. Intellectual property rights, particularly copyright, are deemed to be rights arising from the fruits of a man’s intellectual labour.

Copyright is the right of an author to prevent unauthorised use of his words or displacement of the credit due to him for his labour. In this sense, copyright appears to be an inalienable right of an author but is in fact a product of law and granted only to the extent allowed by legislation.

This necessarily means that the protection or enforcement of intellectual property rights is limited to the extent granted and allowed by the laws of a particular territory, and falls within the ambit of legal rights.

However, it has always been felt that copyrighted works require protection in other jurisdictions as well, since their exploitation in another country without authorisation has the potential to deprive the owner of tremendous economic benefit.

For this purpose, several international conventions and treaties have been brought into force that attempt to overcome the handicap of territoriality of copyright. The Berne Convention and, more recently, the Universal Copyright Convention have aimed to do just that.

As a result of the more or less universal acceptance of the Berne Convention, the present situation is such that a copyrightable work is protected in its place of origin automatically upon its creation. This differs slightly from country to country, with each defining in a different manner the works that are protectable.

Thereafter, through the operation of the Berne Convention and the Universal Copyright Convention, the protection extends to various other countries that are signatories to these conventions. However, there still appears to be no uniformity in the kinds of works or rights that are protected by each country, which again depend upon local laws.

The preamble to the Berne Convention states that one of its objectives is to provide uniformity in the protection of rights. By stating that to “develop and maintain the protection of the rights of authors in their literary and artistic works in a manner as effective and uniform as possible”, the convention declares, albeit indirectly, its objective to create a universal copyright.

In this, it is successful to a large extent, since in most countries today, literary, dramatic, artistic and other copyright-protectable works are allowed protection simply upon their creation, and registration remains a formality that does not per se determine the owner’s right to a particular work.

An exception to this rule is the United States where, by virtue of the operation of Section 412 of the US Copyright Act, registration of all foreign works is a mandatory requirement, not in order to recognise a right, but in order to recover statutory damages in case of infringement.

"It is a step backwards when the international community moves away from its goal of international or universal copyright to national and territorial recognition."

However, in order to understand the implications of such a rule, it must be recognised that while actual damage in a case of infringement is a significant amount, it may be eclipsed by awards of statutory damages and legal fees. The rule under Section 412 therefore becomes a hindrance for foreign owners to recover substantial relief in case of infringement of their unregistered original works in the United States.

This aspect was recently highlighted by a court in New York, in Elsevier B.V. v. UnitedHealth Group, Inc., where the court disallowed Elsevier, the provider of legal, scientific and other information online, from recovering statutory damages and court fees against UnitedHealth Group, Inc., which had allowed access to the plaintiff’s database.

The database consists largely of foreign works, the copyright of which is recognised by the court, but statutory damages for the infringement of those thousands of works were denied to Elsevier. The plaintiff had contended that by virtue of the Berne Convention, the works of foreign authors must be afforded the same protection as works of US authors and that the convention would override Section 412.

The court rejected this contention, stating that the Berne Convention was not a ‘selfexecuting’ treaty and that it required national laws to bring it into force. In this regard, the national laws would take preference and Section 412 would operate against foreign copyright holders that are unregistered in the United States.

This case highlights the importance of registering copyrightable works in the United States for all foreigners and necessitates a rethink of policies for those entities that have thus far not been used to registering their work.

This matter also brings to mind certain provisions of the Indian law that have allowed protection to foreign works for countries that are part of the Berne Convention, the Universal Copyright Convention (UCC) and TRIPS. The ambit of the three conventions is wide enough to include almost all nations or at least those nations with which India has significant trade relations.

Section 13 of the Copyright Act states that copyright shall only subsist in works that have either been first published in India or were authored by an Indian citizen.

However, Section 40 of the act and the International Copyright Order, 1999 afford copyright protection to all countries that are either signatories to or have ratified or acceded to the Berne Convention, the UCC and the TRIPS Agreement of the WTO. There appear to be no restrictions or conditions on the operation of the Indian Copyright Act on foreign works, and these are permissible under Section 40.

Several other countries have enacted legislation that allows, in their own jurisdiction, protection for foreign works. However, the operation of Section 412 of the US Copyright Act implies that for recognising and protecting the works of US authors in their own countries on a par with the protection provided for domestic authors, these nations shall only be allowed a partial protection in the United States.

Indian Copyright Law and international law allow that reciprocity and comity be the basis of the international operation of laws. In such a circumstance, no country would be unreasonable if it enforced restrictions on copyright protection on works from certain countries, particularly the United States.

The principle of reciprocity and also, as cited by the US Judge in Elsevier, the fact that the Berne Convention is not a ‘self-executing treaty’, would mean that every country could limit copyright protection for foreign works.

It is a step backwards when the international community moves away from its goal of international or universal copyright to national and territorial recognition. While in all other spheres of intellectual property, the world is moving to a more or less uniform standard, with Community trademarks and other such trademark registration processes being made available and the Patent Cooperation Treaty for patents, it appears that copyright is in danger of moving away from the goal of universality.

The ultimate loss in the process is to the general public, which may be deprived of the benefits of accessing copyrighted work, while copyright owners may be prevented from fully exploiting the potential in their works.

Also pertinent is the fact that diversification of national laws in terms of protection of works of different countries by different standards may also hinder the development of technology, which increasingly relies on the Internet. Unless things change, it will not only become difficult to control content on the Internet, but also lead to greater restrictions on the availability of content online.

Rahul Chaudhry is a partner at Lall Lahiri & Salhotra. He can be contacted at: rahul@lls.in