The United States is well known for its vigorous protection of intellectual property rights owned by American nationals as well as foreigners. Similarly, the United States expects other nations to observe intellectual property rights of American nationals. Not surprisingly, the United States makes determined effort to urge other countries, especially the countries with emerging economies, to join the international treaties in the area of intellectual property. Virtually as a result of the United States’ active policy regarding expansion of intellectual property rights protection in the international context, the two principal international documents in this area, the Berne Convention [1] and the Universal Copyright Convention, [2] now have all major trade nations as their signatories. Russia, after modernizing its intellectual property laws in the early 1990s, acceded to the Berne Convention in 1995.

 

The Berne Convention and the Universal Copyright Convention are the two principal international conventions obligating signatory countries “to protect, in as effective and uniform a manner as possible, the rights of authors in their literary and artistic works.” [3] These two treaties do not, however, constitute such a thing as “international copyright law” automatically protecting the copyright of each and every author in the world. Protection against unauthorized use in a particular country, whether a signatory to theses conventions or not, will depend on the national laws of that country. [4] The Berne Convention and the Universal Copyright Convention do, however, impose significant obligations on their members as to the legal protection afforded to foreign works.

 

The Berne Convention, the more authoritative of the two conventions, proclaims the two governing principles applicable in the international context: “minimum standards” and “national treatment.” Under the minimum standards principle, a member of the Berne Union is required to protect foreign works if a very limited, easy-to-satisfy set of conditions is met. [5] Protection of foreign works, in particular, cannot be conditioned on registration or any other formality. The Convention does not however prohibit formalities as a prerequisite for certain types of remedies, licenses, procedural benefits, exemptions, etc. Under U.S. copyright law, for example, the availability of statutory damages depends on whether the copyright owner has registered its copyright in the U.S. Copyright Office. Similarly, the owner of a registered copyright will be entitled to compensation of its attorneys’ fees in an infringement suit.

 

The application of the minimum standards principle together with “national treatment” [6] is demonstrated in Itar-Tass Russian News Agency v. Russian Kurier. [7] The Itar-Tass case is interesting not only for its application of the Berne Convention and U.S. copyright law to an unusual fact-pattern, but also because it extensively discusses and applies new Russian copyright law.

 

Maxim Voltchenko*