by : Featured Articles, Business, December 2017

An Introduction to the Berne Convention

An Introduction to the Berne Convention

The United States and Canada are two of the 174 member countries in the Berne Convention for the Protection of Literary and Artistic Arts. This international, long-standing copyright policy mandates several minimum protections and rights for copyright owners in an attempt to balance the moral and financial rights of authors with the benefit of the public good. These include the rights of copyright owners to control, authorize or prohibit reproduction, distribution, rental, importation, public performance, broadcasting, communication to the public, making available to the public, translation and adaption of their work.1 However, the Convention 1 does not define a universal period of time where owners may exercise these rights, creating a vast discrepancy in American and Canadian copyright law and having serious implications in today’s music business.

While Article 1, section 7 of the Berne Convention states that “the term of protection granted by this Convention shall be the life of the author and fifty years after his death,” establishing a minimum standard, section 6 confirms that “the countries of the Union may grant a term of protection in excess of those provided by the preceding paragraphs.”2 The “lifetime plus fifty years” term was already in practice when the United States joined the Berne Convention in 1988, initially implemented by the Copyright Act of 19763; however, the Copyright Term Extension 3 Act of 1998, heavily lobbied by Disney and other lucrative companies risking substantial profit loss from their material entering the public domain, stretched the fifty year period to seventy years.4 While benefiting a very small group of the most successful creators, this twenty year extension hindered the American public’s access to a rich source of their historical and cultural heritage and did little, if anything, to benefit the ultimate goal of copyright law: promoting the creation of new artistic works.

 

Copyright Legislation in the United States

While Canada first adopted the Berne Convention in 1886, the United States’ reluctance triggered a saga of complex and confusing copyright legislation.5 The conditions of pre-Berne laws are still applicable to works created during those eras, despite current policies. Because of a former copyright notice requirement, works published between 1923 and 1977 without the proper copyright notice are subject to the public domain (despite the removal of this requirement when the United States joined the Berne Convention on March 1st, 1989).6 Works published between 1978 and March 1st, 1989 that lack copyright notice also fall into the public domain if the work was not subsequently registered within five years; however, works published during this seven period would be entitled to seventy years of protection after the author’s death if registration was completed within five years, regardless of whether proper notice was originally published or not.

It is estimated that the required proper copyright notice only accompanied 10% of works, instantly leaving the remaining 90% in the public domain.9 In accordance with the Copyright Act of 1909, works created between 1923 and 1963 would be in the public domain if the copyright was not renewed, even if proper notice was given. If a work created during that period was renewed within twenty-eight years of publication, protection was extended to 95 years after the original publication date.10 Additionally, United States copyright law differentiates works made for hire or “corporate authorship” from traditional works. Section 101 of the Copyright Act of 1976 defines a work made for hire as “a work prepared by an employee within the scope of his or her employment.”11 The resulting creation is owned by the employer, not the employee; the commissioner of that work is considered the legal author. Works made for hire in the United States are entitled to the sooner of 95 years of copyright protection from the date or publication, or 120 years from the date of creation.12

In Canada, works made for hire are not legally recognized and receive the same term of copyright protection regardless of whether the work was created for employment.13 While the employer may own the work and reap the financial benefits of copyright ownership, authorship is still credited to the employee.

 

Copyright Discrepancies Between the United States and Canada

Canada’s fifty year copyright term following an author’s death would mean that all works created by authors who died in 1967 will soon be entering the public domain. Under current US copyright law, these works would receive an additional 20 years of copyright protection; however, most works created during this period are still regulated by the Copyright Act of 1909. Assuming proper renewal and notice was pursued, these works would enter the public domain ninety-five years after publication.14

While Canada’s copyright term results in all of an author’s works entering the public domain at the same time, the expiration date would vary in the United States for each individual piece. For example, Otis Redding, wrote and recorded popular hit, “Sittin On The Dock of the Bay” only a few months before his tragic death in 1967.15 Two years earlier in 1965, Redding wrote and originally released, “Respect,” which would later become Aretha Franklin’s iconic performance.16 Both works created by Redding would enter the public domain in Canada in 2017. However, “Respect” will receive US copyright protection until 2060, and “Sittin On The Dock of the Bay” will not expire until 2062.

While the overwhelming result is an influx of American songs entering the Canadian public domain while still under US copyright protection, this also creates a small loophole of songs in the US public domain that are still protected in Canada. As a result of obstacles mandated by the Copyright Act of 1909, 85% of works created before the Copyright Act of 1976 became part of the public domain.17 Technical oversights meant even famous works such as “Rockin Robin,” a hit song that topped charts with Bobby Day’s performance in 1958, entered the public domain.18 Because the author, Leon Rene, did not die until 1982, “Rockin Robin” would have been protected until 2032, if Rene was Canadian; however, because “Rockin Robin” is in the public domain in the United States, the country of origin, it is also part of Canada’s public domain.19

 

Modern Use of Public Domain Material

According to the Berne Convention, when a work enters the public domain, any individual can exercise the exclusive rights previously reserved for the copyright owner. While a particular arrangement or recording of the work may still be protected, the work itself is available.20

“Take the A Train,” the famous jazz standard, was written by Billy Strayhorn in 1939.21 In addition to being Duke Ellington’s signature tune, “A Train” has been covered by dozens of artists over the decades including Oscar Peterson, Ella Fitzgerald, Chaka Khan, Mel Torme, and Chicago.22 Under the ninety-five year protection term, the copyright for “A Train” in the US is due to expire in 2034; however, because Billy Strayhorn died in 1967, it recently entered the public domain in Canada.

Nikki Yanofsky, an accomplished Canadian jazz-pop artist, successfully released her own cover of “A Train” on her 2010 album, Nikki.23 Because the original work was still protected under Canadian copyright law in 2010, Yanofsky had to obtain permission to initially record, release, and sell her version of this song. Alas, once the underlying work entered the public domain, Yanofsky became the sole author and copyright owner of her own rendition; she can now pitch her arrangement for any commercial performances and ventures in Canada without navigating additional licenses, permissions or fees.24 Per contra, because the US copyright for “A Train” is still in effect, Yanofsky does not have the same liberty to freely solicit or serve as the sole rights holder regarding commercial opportunities in the United States. For example, if an American television series wanted to use her performance or arrangement, permission would still need to be obtained for the underlying work.

 

Works For Hire

Because Canadian copyright law does not recognize works made for hire as a special circumstance like the United States does, these works are granted the standard term of fifty years following the author’s death. Rodger Penzabene, a songwriter employed by Motown Records, wrote and co-authored several songs in the 1960s for artists like Gladys Knight & the Pips and Marvin Gaye.25 His most notable songwriting contribution is a series of hits performed by The Temptations: “You’re My Everything”, “I Wish It Would Rain”, and “I Could Never Love Another.”26

Because Penzabene created these works as an employee of the record label, each song assumed ninety years of copyright protection from the point of publication, expiring from Motown Records in, respectively, 2062, 2062, and 2063.27 Conversely, in Canada, authorship of these works would still be associated with Penzabene, despite his status as an employee.28 Therefore, because Penzabene died in 1967, very shortly after completing his emotional trilogy, his works will enter the Canadian public domain by the end of 2017.

 

Practical Music Industry Issues From Differences in Copyright Term

The twenty-year discrepancy in copyright term inevitably creates a rift between the American and Canadian music industries, where the popularity of certain styles, artists, and songs typically run parallel. In the age of the Internet and social media, where music can be shared instantly and virally with anyone in the world at any time, varying copyright terms are neither practical nor enforceable once a work enters the public domain in a different country.

The work of any author deceased prior to 1967 is now in the public domain in Canada. A Canadian website may upload the sheet music to these applicable works and share with the public, and consequentially a Facebook user may upload videos of himself singing one of these works without the threat of account suspension. Simultaneously, a Canadian fashion company could print T-shirts featuring lyrics from the work, without acquiring permission.

However, what prevents a musician in America from logging onto that Canadian website and printing out free sheet music? What prevents a Facebook user in America from watching their Canadian friend’s performance online? What prevents an American consumer from ordering one of these T-shirts and having it shipped to their home in the United States? Despite Canadian public domain, these works are still protected under US copyright law, and their creators are entitled to an additional twenty years of financial benefit.

 

Conclusion

Protected by the first amendment’s commitment to freedom of speech and expression, the United States cannot simply censor the Internet from Canadian webpages. While American anti-piracy legislation can harp down on websites and applications enabling copyright infringement, all of the examples previously discussed adhere to their respective, federal laws.

It is not the responsibility of foreign governments to monitor whether or not online user-generated content complies with US code, in addition to their own. Therefore, international copyright duration should be harmonized to the Berne Convention minimum: the lifetime of the author plus an additional fifty years. The twenty-year extension subject in the United States, along with varying extensions in additional countries, offers minimal incentives for authors to create new works and ultimately does more harm than help in maintaining the goal of copyright legislation. By limiting user access to twenty years worth of cultural and historical progress, the creation of new works inspired and influenced by these prior contributions, is greatly hindered.

 

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Footnotes

1 “Understanding Copyright and Related Rights.” World Intellectual Property Organization 2 (2016). http://www.wipo.int/edocs/pubdocs/en/wipo_pub_909_2016.pdf.

2 The Berne Convention for the Protection of Literary and Artistic Arts (1971).

3 Moser, David J., and Cheryl Slay. “The History of Copyright.” In Music Copyright Law. Boston: Course Technology / Cengage Learning, 2014.

4 Moser, David J., and Cheryl Slay.

5 Moser, David J., and Cheryl Slay. “Duration of Copyright.” In Music Copyright Law.

6 Hirtle, Peter B. “Copyright Term and the Public Domain in the United States.” Chart. In Cornell Copyright Information Center. 2014.

7 Hirtle, Peter B. “Copyright Term and the Public Domain in the United States.”

8 Hirtle, Peter B. “Copyright Term and the Public Domain in the United States.”

9 “The Incredible Shrinking Public Domain.” Duke University’s Center for the Study of the Public Domain. 2017. https://law.duke.edu/cspd/publicdomainday/2017/shrinking/.

10 Hirtle, Peter B. “Copyright Term and the Public Domain in the United States.”

11 United States. United States Copyright Office. Works Made for Hire. Washington DC: Library of Congress, 2009.

12 Hirtle, Peter B. “Copyright Term and the Public Domain in the United States.”

13 Abramovitch, Susan H. “Canada and the United States: Differences in Copyright Law.” Gowling WLG. July 1, 2013. https://gowlingwlg.com/en/canada/insights-resources/canada-and-the-united-states-differences-in-copyright-law.

14 Hirtle, Peter B. “Copyright Term and the Public Domain in the United States.”

15 “Otis Redding Biography.” Biography.com. February 15, 2015. https://www.biography.com/people/otis-redding-9453430.

16 “Otis Redding Biography.” Biography.com.

17 “The Incredible Shrinking Public Domain.” Duke University’s Center for the Study of the Public Domain

18 Nichols, Tom. They Never Renewed. New York, NY: BZ/Rights Stuff, 2010.

19 Moser, David J., and Cheryl Slay. “Duration of Copyright.” In Music Copyright Law.

20 Moser, David J., and Cheryl Slay. “The Derivative and Distribution Rights” In Music Copyright Law.

21 “Take the “A” Train.” Smithsonian National Museum of American History. April 4, 2009. http://americanhistory.si.edu/documentsgallery/exhibitions/ellington_strayhorn_6.html.

22 “Take the ‘A’ Train History.” The Mockingbird Foundation, Inc. Accessed October 13, 2017. https://phish.net/song/take-the-a-train/history.

23 Chisling, Matthew. “Nikki Yanofsky Biography & History.” AllMusic. Accessed October 13, 2017. https://www.allmusic.com/artist/nikki-yanofsky-mn0001964472/biography.

24 Moser, David J., and Cheryl Slay. “The Derivative and Distribution Rights” In Music Copyright Law.

25 Cherches, Peter. “The Real Pain of Roger Penzabene”, February 2, 2014

26 Cherches, Peter. “The Real Pain of Roger Penzabene”

27 Hirtle, Peter B. “Copyright Term and the Public Domain in the United States.”

28 Abramovitch, Susan H. “Canada and the United States: Differences in Copyright Law.”

 

By Alissa Musto

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