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United States Joins The Berne Copyright Convention

January 1989

For many years, the most important omission in international copyright protection for United States authors has been the failure of the U.S. to adopt the Berne Convention for the Protection of Literary and Artistic Works. This Convention, which was originally adopted in 1886, is the world’s oldest and most widely adopted international copyright treaty. Berne requires a member nation to provide the same copyright protection to authors who are nationals of other Berne member nations that it provides to its own nationals.

On October 31, 1988, President Reagan signed a bill amending the Copyright Act to make it compatible with Berne, and the U.S. took the formal steps necessary to become a member of Berne. The effective date of both the Act and the United States’ membership in the Berne Convention is March 1, 1989.

Although the U.S. has been a member of the Universal Copyright Convention (the “UCC”) since 1954, that treaty has been less widely adopted than Berne, and generally is regarded as conveying less international copyright protection than membership in Berne. By ratifying Berne, the U.S. will establish copyright relations with 24 nations who were not members of the UCC, and with whom it previously had no reciprocal copyright law relations. The U.S. action brings to 76 the number of countries belonging to the Berne Convention, leaving the Soviet Union and the Peoples Republic of China as the only major countries which are not members.

Berne requires its members to meet certain minimum copyright standards, and Congress was forced to amend the Copyright Act to conform in several ways. First, under U.S. copyright law, it has long been required that registration must be attempted (and granted or denied by the Copyright Office) before a suit for copyright infringement can be maintained. This condition is inconsistent with Berne, and therefore Congress was forced to eliminate the registration requirement. However, rather than do so for all authors, Congress created a two-tiered system: authors of works whose country of origin is the U.S. still must attempt registration before commencing litigation, while authors of works where the country of origin is a Berne member other than the U.S. may bring an enforcement action without attempting registration.

At the same time, Congress increased the incentive for U.S. authors to register by doubling the level of statutory damages — damages that a copyright owner may recover without the need of proving either actual economic injury to itself or illegal profits to the infringer — for registered works. For example, in the case of a willful infringement, maximum statutory damages have been increased from $50,000 to $100,000. Generally, a U.S. plaintiff may not recover statutory damages (or attorney’s fees) if it has not registered its copyright before an infringement commenced.

The second major change forced by Berne is the elimination of the requirement that a published work bear a copyright notice in order to prevent the work from entering the public domain. The notice requirement has been eliminated for all works, whether or not they originate in the United States. However, the amended Copyright Act contains significant incentives for domestic and foreign authors to continue to put notices on their works. The Act now provides that a proper copyright notice precludes a defendant accused with infringement from asserting the defense of “innocent infringement,” which otherwise might enable a defendant to avoid actual and statutory damages.

TLB Comment : The United States’ endorsement of Berne greatly broadens the scope of international copyright protection available to U.S. authors. Berne may also serve as a powerful vehicle for the U.S. to lobby member nations to extend copyright protection to computer software, in cases where they do not already do so.