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International Treaties and Protection in Other Countries (Copyrights)

The Berne Convention. Protects the works of nationals of member countries as well as such works that were first published in a member country. The work must be published within 30 days in a member country from the date of the first publication in a non-member country to be protected. The Berne Convention also provides for minimum requirements of protection including the protection of the moral rights of attribution and integrity. The United States enacted the Visual Artists Right in 1990, limiting moral rights to visual art, on the basis that other provisions of U.S. copyright law afford indirect protection to other works of authorship. The Berne Convention provides in particular that there should be no formalities for the vesting of copyright in a work of authorship.

The Universal Copyright Convention (UCC). The UCC, similar to the Berne Convention, is based on national treatment but has no mention of moral rights.

TRIPs Agreement. Affirms the Berne Convention with the exception of moral rights, and provides that computer programs and compilations are to be treated as literary works.

• The WIPO Copyright Treaty (WCT). The WCT is a protocol for the Berne Convention which provides for digital rights. First, the WCT specifically mentions the Internet and the right of copyright holders to distribute their works online. In addition, the WCT pro­hibits circumvention or tampering with digital management rights, which form the basis of the U.S. Digital Millennium Copyright Act.

Implications for Legal Management

The most important consideration for management purposes is to ensure that the organization has ownership of the copyright in works that it commissions. This area is complicated by the "work for hire" doctrine. Generally speaking, a copyright is owned by the author except if the copyrighted work was made for hire. The Copyright Act provides that if an "employee" creates a work "within the scope of his or her employment," then the employer will be considered the author and will hold the rights of ownership in the copyright. However, if the author is an independent contractor then the work will be deemed for hire (i.e., the hiring party retains ownership) only if the work fits into one of the nine categories enumerated under Section 101 of the Act, and the parties agree in writing that the work will be considered as a work made for hire. It is therefore of utmost importance to make sure that agreements are made in writing and signed whenever the organization commissions a consultant or a contractor to develop its Web site, for example, to ensure ownership of the work.

Infringement, Enforcement, and Litigation

In general, the steps mentioned under Patents should be followed with the following changes to steps 1, 2, and 4:

1.   Determine the occurrence of infringement.

Determine the protectable elements of the work, keeping in mind that ideas and facts are not protected by copyright.

If access to and copying of the protected elements are established, then it is clear that infringement has occurred.

If neither access nor copying can be established, then assess the level of similarity between the works. Substantial similarity is required to prove infringement.

2.   Collect the required evidence.

Proof of access and copying

Proof of substantial similarity

Proof that the infringing work constitutes a derivative of the protected work through evidence of similarity, and by showing that it limits the ability of the copyright owner to fully exploit the work through reproductions.

4. Assess the strength of the copyright.

Assess validity of the copyright - The work has to be the original creation of the author. Independent creation is allowed.

Assess the strength of the copyright - The more artistic or expressive the features of the work, the stronger the copyright. This excludes functional features that have to be used for the obj ect to perform the function it was created for, and common plot themes or what is referred to as "scene fairez" as well as the idea of the work, provided it has not merged with the expression.

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