Copyright law: EU countries vs US – part 1

We are living in digital era. When a photo is published, it may be immediately seen all over the world. The easier it gets to steal a photograph, the more we should try to protect it. But how to do it, if there is no unified, international copyright law?

The common ground for copyright protection of works and the rights of its authors is provided by the rel=”nofollow” Berne Convention for the Protection of Literary and Artistic Works. It’s an international agreement signed for the first time in 1886 and amended many times since. The United States and countries of The European Union are parties to the Berne Convention together with more than 170 countries all over the world. So what does it mean?

Despite the fact that the copyright law is subject to national legislations based sometimes on very different legal systems, the Berne Convention contains provisions which provide the minimum protection to be granted amongst its signatories. As WIPO explains, there are 3 basic principles, to which all the contracting members agree:

  1. “National treatment”, which means that a work created and protected in one treaty country is also protected in another signatory country, under that country’s rules – You apply the law of the country where the work is being used.
  2. “Automatic” protection, which states that no formalities are needed for a work to be protected. In particular, the protection must not be conditioned upon registration of the work.
  3. “Independence” of protection – even if the work is not given protection in the country of origin, it’s still provided with minimum protection described by the Berne Convention.

It is worth to remember that copyright laws in the US and those of the EU countries represent two different copyright traditions –  the common law monistic system and the civil law dualistic system, therefore are full of differences in interpretation and execution of copyright protection. The monistic system views the moral and economic rights of the copyright owner as one structure, while in dualistic continental system the moral and financial interests are separated. It affects a lot of the copyright doctrine and some legal concepts in those jurisdictions.

US copyright law

© niroworld

Copyright in the United States is covered mainly by The Copyright Act of 1976. In the EU countries legislation is based on a number of regulations including The European Directive on the harmonisation of certain aspects of copyright and related rights in the information society (2001/29/EC) also known as Informative Society Directive.

Author’s rights

Exclusive author’s rights consist of two basic components: economic rights and moral rights. In the United States as well as in European countries, an author has the exclusive right to: reproduce the work in copies, perform the work publicly (which means deciding how the work is seen by the public), prepare derivative works – decide whether to modify or change the work,  display the work directly to the public, and to distribute copies. These rights can be transferred to another person or entity, like any other property.

However, in Europe the concept of moral rights, coming from the French idea “droit d’auteur”, is much stronger than in the American legal system. It is connected with a strong belief that creative work is “the work of the mind”, an expression of author’s personality, belonging to creator (at least initially).

Moral rights

The term ‘moral rights’ in copyright law relies on the connection between the author and his/her creation and the moral right of the creators to control their works. First of all, it means that the author has the right to be attributed as a creator of a work or to remain anonymous. Second of all, the creator has the right to keep the integrity of this work, which means that any mutilation, deformation or modification cannot be done without his/her authorisation. While in most EU countries moral rights include all types of protected works, in the United States copyright law moral rights refer only to visual arts. According to Visual Artists Rights Act of 1990 (VARA) moral rights are limited to photographs, paintings, drawings, prints and sculptures existing in a single copy or a limited edition of 200 or fewer signed and numbered copies.

Additionally, while in the United States the moral rights, unlike the economic ones, end with author’s life, in most of European countries moral rights are perpetual and inalienable.

Who owns the copyright?

In the American law there’s a concept called “work made for hire”. The author and the owner of a work made for hire is the employer for whom the work is prepared in the scope of the employment. It can be an individual, a company, or any organisation. The employer is the initial copyright owner, even if the employee actually created the work, unless both parties sign a written agreement to the contrary. This distinction affects the duration of the copyright. In the European Union the “work for hire” issue is more complicated. Each member state has its own regulation and is free in the “work for hire” approach, although is limited by regulations of Treaty of Rome of 1988. Therefore, national copyright protection in the EU is almost divided between a strict author’s rights approach and a common law-oriented, economic rights approach. In German or Greek copyright law the doctrine of “work for hire” is entirely absent, because the basic principle is that only the natural person who creates work can be its author. On the other hand, Italian or Spanish copyright law recognizes “work for hire” under limited circumstances, while the Netherlands is the only one civil law country, which fully incorporated the “work for hire” principle.

Go to part 2

Author: Kinga Kijak-Markiewicz

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2019-10-22T22:00:12+00:00October 10th, 2017|

About the Author:

Case Manager in PhotoClaim. Law and Film Studies graduate. Copyright Law postgraduate. Happy that she can combine her legal experience with a love for (audio)visual arts. Repeats after Henry Cartier-Bresson: "to photograph is to put on the same line of sight the head, the eye and the heart".

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