Wednesday, July 15, 2009

More US Treaty Troubles

(Philip Johnson's "Glass House"/Business Week)

There has been a potentially very important interim ruling in the mega litigation in the USA involving NFL, Premier league, et al against YouTube.

Judge Louis Stanton of the Southern District of New York has ruled that infringement of foreign works (other than live broadcast events for which 48 hour advance notice has been given to potential infringers) cannot given rise to statutory damages under US Copyright Act unless the work was registered in in the USA in a timely fashion - which will seldom be the case.

While this might not have a huge effect on the particular litigation against YouTube, it is great news overall for Google, which owns YouTube, and any other parties that host foreign works on US servers.

Naturally, alarm bells are ringing about whether this puts the USA into (yet another) violation of the Berne Convention and TRIPS, and presumably NAFTA as well. The essential point of Berne is that no country can impose “formalities” on nationals of another member country.

Judge Stanton considered all of that along with the legislative history in some detail but ruled on the wording of the statute, not the treaties - which is what Courts are supposed do if they believe that the wording is clear. As is the case in Canada, treaties are not self executing in the USA.

Here’s good blog commentary by AmeriKat, a new kitten to be watched, and good old reliable Out-law.

This ruling will likely be appealed.

Other US violations of Berne include these:

The USA has also been ruled to be in violation of Berne in the “Section 110" matter at the WTO, which goes back to 2001.

The USA has no “moral rights” other than for visual works, although it cleverly exempted moral rights from the dispute resolution process under TRIPs.

There's an old adage about people who live in glass houses not throwing stones.....

Of course, none of this will stop certain lobbyists in Canada who serve primarily US interests and even the USTR itself (which is heavily influenced by these lobbyists) from whining about Canada's failure to ratify the 1996 WIPO treaties, when Canada is under no such legal or other obligation.


PS - "AC" makes an interesting point in the first comment below. This reminds me of the obvious fact that Canada does not make statutory damages conditional upon registration. So, foreign owners can - and do - threaten to use this powerful weapon in Canada. If this decision stands, it will be yet another example to add to my growing list of how Canadian copyright law is already stronger than US copyright law.

1 comment:

  1. Howard, Good post.

    As a matter of noe, the US provisions requiring registration for statutory damages is arguably not a violation of the Berne "no formalities" rule.

    The requirement for registration to be able to claim statutory damages is seen as an incentive to encourage registration.

    Copyright and protection for one's copyright still exist, it is the right to a certain form of compensation for infrinegment that is limited.

    Ginsburg and Ricketson are insightful on this point.