Copyright’s Angsty Teenager Stage (Section 104)

This is the latest in our series of posts marking the 50th anniversary of the Copyright Act of 1976. To find a list of all the posts in this series, click here.

In Section 104, the Copyright Act addresses national borders. I like to think of Section 104 as the time U.S. Copyright started to grow up—U.S. Copyright Law, coping with acne, growing pains, and raging hormones, finding its place in the world while also discerning what kind of law it wants to be. Is that metaphor a stretch? Perhaps. But stay with me, and I hope I’ll make the case. (To further stretch the metaphor, Section 104 reaches adulthood in section 104A, which we’ll discuss in a future post).

To set the stage, international copyright is a strange animal. In part, this is because there is not even agreement across nations as to why we have copyright. As we at Authors Alliance like to remind anyone who will listen, in the United States (as well as the United Kingdom and its other former colonies), copyright’s purpose is utilitarian—the public grants authors temporary monopoly rights in order to “promote the progress of science and useful arts,” and only for that purpose. The key here is the rights are granted by the legislature at the sufferance of the ultimate intended beneficiaries—the public—in order to inspire future work.

By contrast, in many other countries, such as France, Belgium, the Netherlands, and Italy (and their former colonies), the purpose of the rights is to reward authors for work already created. In these countries, the rights are derived not from the discretion of the legislature as part of a balancing act, but instead are closer to natural rights. Authors are the ultimate beneficiaries, and the rights are not so much given as acknowledged. The differing nature is recognized in the terminology—these are not “copyrights,” but instead are known as “authors’ rights.”

As an aside, language tends to reflect the local bias. Even those English speakers who are aware of the difference often use “copyright” as a generic term for both, while French language does not even make a distinction—they are always droits d’auteur (sometimes, when necessary to make the distinction, French borrows “copyright”).

The “international law” of copyright, to the extent there is such a thing, is found in a series of treaties and trade agreements. In most cases they are simply mutual promises among nations to provide national treatment—that is, to provide foreign citizens the same copyright protections they provide to their own. Traditionally, copyright is really a national problem, and a country’s enforcement power generally stops at its own borders (there are modern exceptions to this). 

The first large scale agreement on copyright was the Berne Convention of 1886. Diplomats from a handful of countries assembled in Berne, Switzerland, and mutually agreed to enact minimum standards of protection and also to provide national treatment for authors from the other signatory countries. Though there were only ten signatories, they had an outsized influence, thanks to the European signatories’ colonial activities—between them, they controlled much of Africa, the Caribbean, southeast Asia, and Oceania. 

The United States was notably absent from the Berne Convention. At the time the Berne signatories convened, the United States was arguably still something of a developing nation. Lack of protection for foreign works gave domestic authors and publishers advantages over cultural imports. For much of the first century of the country’s history, that was seen (domestically) as a virtue, but by the time Berne was inked, that was starting to change.

As the United States grew, and its cultural influence grew, it transformed from a net importer of culture to a net exporter. Foreign nations would not, of course, grant protection to U.S. authors unless the United States reciprocated, and the consequences of its isolationism were increasingly felt by its own authors, whose works were unprotected overseas. Much as it did in other aspects of its interactions with the world, U.S. copyright learned that if it wanted to win the game, it needed to play the game.

Which brings us back to the great question in our teenage Copyright Law’s origin story: would it hold on to the utilitarian values instilled by its colonial parents, or would it join the rest of the world in their more Lockean outlook? In the 1976 Copyright Act, Congress revealed the answer—some of both. 

Section 104 provides fairly straight forward national treatment, but there is an acre of meaning lying under the surface.

The path to Section 104 began in 1891, with Congress’s first act to protect foreign authors. Under that law, and then later under the 1909 Revision, a country’s authors received national treatment only if the president issued a proclamation granting protection. Eventually, thirty-five countries were “proclaimed.” The U.S. was also party to two regional treaties—first the Mexico Convention and then the Buenos Aires Convention—which added additional countries (this history is accounted in fascinating detail in a 1961 report to Congress prepared by the Copyright Office)

Partly to address the different philosophies among countries, the international community gathered in Geneva in 1952 and negotiated the Universal Copyright Convention (the other UCC). Among other things, the UCC enabled the U.S to ensure national treatment for its own authors abroad, while still preserving its own deep-seated traditions. The U.S. joined the UCC in 1955, but even then Congress could see that true reciprocity would require eventually joining Berne.

The 1976 Act finally cleared the way for joining the international community as an equal player. Much of the Act was driven by an eye toward this eventuality—toward harmonization with the rest of the world—and the changes started here, in Section 104. Rather than allow national treatment only if the president permitted it, Section 104 flipped the rules. National treatment was now assumed as long as the country was a treaty party with the U.S. (at the time referring mainly to UCC signatories), and the president was now only empowered to exclude countries upon a finding of noncompliance.

Later, Congress added an important further clarification. There was some question as to whether the copyright treaties were enforceable immediately upon ratification—that is, whether they were “self-executing.” Some countries are explicitly monist, meaning treaties become a part of the law as soon as they are ratified, as though they were enacted by the legislature. By contrast, dualist countries require enactment of laws implementing the treaties. The U.S. Constitution has some internal tension as to where it lands on this spectrum. Article VI provides that ratified treaties are included as part of the “supreme law of the land,” but Article I requires that laws be passed by both houses of Congress, something not required for treaty ratification.

Congress amended Sec. 104 in 1988 when it implemented the Berne Convention. Under the amended Sec. 104, Congress clarified that the Berne Convention creates obligations for Congress, but only an act of Congress can extend those obligations to individuals. As as a result, in the United States, you can’t sue under the Berne Convention; you can only sue under U.S. copyright law. Here, at least, Congress has taken a dualist position, and it is one the Supreme Court has almost always supported.

In my analogy, it may sound like I’m portraying the outside world—especially the Berne signatories—as the adults who know better. To some extent, Congress also seems to have taken that position, viewing the U.S. as needing to catch up with the rest of the world. But sometimes the teenager has the fresher perspective—one which jaded adults would do well to heed—and I think this was one such instance. 

The United States gained much when it committed to joining the international copyright community, but it also lost much. The problem with harmonizing with international treaty partners is it is typically a one-way deal. The Berne Convention was already more than a century old when the U.S. joined, so there was much more pressure on the U.S. to join Berne on its terms than there was on Berne countries to adapt to U.S. ways of thinking. It will be a recurring theme as we explore Title 17, but at the risk of engaging in rosy retrospection, there were some ways in which we think the U.S. really did have the better view. 

There are far too many examples than will fit in one post, but as a preview of coming attractions, we’ll see it in Chapter 3, in the costs of moving from a fixed copyright term based on the date of publication to a variable date based on the author’s lifespan. We’ll see it in Chapter 4, in the problems raised by a formality-free copyright system. We’ll see it in several of the sui generis provisions, and in the gradual erosion of the United States’s traditional utilitarian perspective on copyright. But we’ll also see, in some provisions (especially in our fair use right) places where the U.S has thankfully held its ground, and others, such as Chapter 12, where we think the United States could still stand to learn from its neighbors.

Throughout Title 17, and especially the original Copyright Act, there is an outward looking undercurrent toward harmonizing with the ways of the elders of international copyright. Section 104 at once makes clear that United States copyright has come of age, and is playing with the adults, but is also firmly retaining the power to do so on its own Constitutional and philosophical terms.