Foreigner's copyrigths in the USA
Most right holders, whether their rights regard trademarks, patents or design, know that the registration process of obtaining proprietary rights can cause quite the headache. Proper filing must be done in time to ensure the needed protection - and failure to do so can result in great losses and long battles in the court room.
Copyright owners have it much easier. According to the Berne Convention (the international agreement from 1886 governing copyright) the “enjoyment and exercise” of copyright shall not be subject to any formality, and therefore no formal registration is needed. The copyright protection arises as soon as the work is fixed in a tangible form of expression.
That certainly makes things a lot easier – one would think.
Before the Berne Convention took force, a lot of countries – including the US – had a different approach to copyright, where formal registration was required. Post-Berne the registration is voluntary, but remains from the previous systems are still found in the USA causing differences and difficulties in the copyright system.
Even though the Berne Convention clearly states that no registration is needed, domestic US law still indirectly requires registration. An unregistered copyright will as a rule do just fine in the US, but the moment an infringement takes place and you wish to sue, your unregistered right falls short. According to US law, a lawsuit in federal court isn’t possible if the infringed copyright is unregistered. This means you will be left with an infringed copyright and no remedies – besides angry letters and lots of sulking.
It is a possibility to register the copyright after the infringement takes place – and thereby opening up the doors to the court. But a late registration means that you can only sue for actual damages – meaning you need to be able to prove an economic loss, which is often very difficult. If the copyright had been registered from the beginning, you could also have sued for statutory damages – an amount not depending on your ability to prove a loss, but damages specified in the US copyright law, prompting a payment of up to USD 150.000 for each infringed work.
But what about Berne, you might ask? As previously stated, Berne ensures that no registration is required for the “enjoyment and exercise” of copyright – and most people would say, that the ability to sue is indeed part of the enjoyment and exercise of ones rights. But does this mean that foreign copyright owners are able to sue in the US on the basis of an unregistered copyright, when American copyright owners aren’t? Yes. That is – oddly and unfairly enough – the case. Because of Berne the requirement for registration in order to sue does not apply to foreign works, and the court doors are wide open, as long as your work hasn’t originated from the US.
But – and this is a big but – US court rulings have determined that registration is still required, if you wish to sue for statutory damages. So even though Berne clearly says that no registration is needed, US courts have interpreted the rules as not applying on the ability to sue for statutory damages.
The interpretation has been widely discussed, mostly because it means that US law is not entirely in compliance with the Berne Convention. But as for now, the judges stick to their decisions.
So even though the process of obtaining a copyright seems a bit easier than obtaining other rights, it is clearly still a good idea to watch your step – especially if you’re dealing with countries who feels the need to deviate from the path laid out by the Berne Convention.