Copyright law: EU countries vs US – part 2

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There is no international copyright law that protects the artwork worldwide. Fortunately, the Berne Convention, its principles, standards and rules became a framework for copyright law. Countries are obliged to meet the convention’s minimum standards, however they are free to go further in the copyright protection. It is worth to know how it differs in some countries to avoid copyright infringement and protect your artwork. As it was written in previous article, there is a lot of significant differences in copyright protection between the United States and the EU systems.

How long is the copyright protected

The general rule deriving from The Berne Convention ensures protection of photographic works for minimum 25 years from the creation of the work.

European Union

© Nico Trinkhaus

The EU countries were more generous and in 1994 unified the timespan of protection to seventy years after the author’s death.

In 1998, the United States also lengthened the copyright protection the same way as the EU, however it only refers to works created after 1 January 1978. Like in the EU, if it’s a joint work of two artists or more not working for hire, the protection lasts for 70 years after the last surviving author’s death.

If the work is a “work for hire” or anonymous, then the work is protected for 120 years after creation or 95 years after publication, whichever expires first.

Public domain

After copyright protection expires, a work is considered to go to the “public domain”. It means that it can be used without permission and free of charge. However, it’s necessary to remember that the same work can have different status in different countries not only because of different duration of copyrights, but also because of different nature of a work (governmental works are in public domain in US) or a special exception (J. M. Barrie “Peter Pan” is under perpetual copyright protection in UK).

Fair use

The concept of fair use is standard of the copyright law in US. Copyright laws in the EU don’t apply such a doctrine.  They do however provide a list of exceptions and limitations enumerating the various detailed forms of permitted use. According to the EU’s Copyright in the Information Society Directive of 2001 such forms of use as parody, quotation, private copying or classroom use are permitted.

The United States approach, unlike the continental European law approach, specifies that for some purposes such as criticism, comment, news reporting, teaching, scholarship, or research (the list is non-exclusive), the use of copyrighted work is not an infringement of copyright, but a fair use. There is also no distinction between private use and public. Because of the precedent character of the common law, the borders of fair use are continually pushed by judicial decisions. In each particular case a court analyses 4 factors (purpose, nature, amount and effect) to consider whether the use is fair or not. The fair use model is very flexible, which is an advantage in times of rapid technological changes and is more effective than that adopted in continental law, which is detailed and connected with specific states of technology.

To register or not to register?

According to The Berne Convention there is no need to register a work of art. It is automatically copyrighted upon creation in the European Union countries, also in the United States.

Registration procedure in the US is not required for the work to be protected, however not registering limits certain available remedies. How does it work?

If a copyright holder had registered the piece of art before the infringement or within 3 months from making it public, he/she can choose what kind of damages he will receive if his copyright is infringed. It can be actual damages or statutory damages. Actual damages are calculated by courts, usually based on normal licence fees and/or industry standard licencing fees. It is possible to recover the profits the infringer gains from infringing activity e.g. profit from sale of photograph printed on canvas. However, they can’t be too speculative and sometimes they are difficult to prove. If the work was registered, the copyright holder has a chance to get an extra damage award called statutory damage which can go up to (under certain conditions) $ 150 000 per infringement, plus legal costs. The statutory damages serve not only compensatory, but also punitive purposes.  However, if requirements for registration aren’t met, there is no chance for statutory damages.

What is important, registration in US does not extend to the other countries.

Author: Kinga Kijak-Markiewicz

Now that you know more about copyrights. It is time to protect yours.

It does not cost a dime but may bring you thousands! 

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2019-02-18T09:50:17+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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