Copyright or Copy Wrong?
Second in a Series

by Gregory Hancks, AIA
Associate General Counsel

Summary: You may know (or think you know) your basic rights and obligations under copyright law. But what misconceptions are commonly held by people you work with, your boss or employees, your clients, or your consultants? You might be surprised.

This is the second in a series of articles exploring various aspects of copyright that are frequently misunderstood. In this installment, we will look at where the “rights” part of copyrights come from.

Should you make a federal case out of it?
So, you know how to secure your copyright under federal law. But what about your rights under state law?

Trick question. There are no state copyright laws, only federal.

Most legal matters that intersect with architectural practice are part of state law. For example, professional licensing, the negligence standard of care, and contract law are determined by each state. Copyright is one of the few instances where federal law applies.

This is because the U.S. Constitution itself grants Congress the power over copyright, that is, to secure “for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” (See Article 1, Section 8, Clause 8.) The First Congress acted quickly and adopted the first federal copyright statute in 1790.

Sticklers will object that there is something called “common law copyright.” (Readers who are not legal nerds can now skip to the next paragraph.) It is true that court opinions are peppered with references to common law copyright, including under state law. This is because—for most of the 20th century—copyrightable material was protected by common law copyright as long as it remained unpublished. When Congress passed the 1976 Copyright Act, however, it effectively abolished any such rights based on state laws.

So, the federal copyright statute, which is published as Title 17 of the United States Code, is the ultimate source of copyright law. It is unwise, however, to interpret any statute based only on reading the statute’s text by itself. Knowing what copyright law means in practice requires something more. It requires looking at how courts have applied the copyright statute in other situations that are similar to your own. Because Congress has given federal courts exclusive jurisdiction over copyright claims, most court opinions that discuss copyright law are written by federal courts.

Because Congress has given federal courts exclusive jurisdiction over copyright claims, most court opinions that discuss copyright law are written by federal courts

There’s one other thing that needs to be considered: the world outside our own country’s borders.

Hither, thither, and yon
Let’s say that you have landed a project in Dubai. You outsource some of your drafting work to a company in India, and you retain a structural engineer in Taiwan (aka Chinese Taipei). The engineer outsources work to India as well. The project is a success, and the owner, a company based in London, is pleased.

Now you submit preliminary design proposals for a project in Kuwait. You are chagrined to find out that a Kuwaiti firm got the job with a proposed design that looks remarkably like your Dubai project. You eventually learn that the Kuwaiti firm had acquired a nearly complete set of your Dubai drawings from the Indian firm used by the Taiwanese engineer.

Where along this chain do you have copyrights in your work that you could assert? (Let’s set aside the difficulties in dragging the miscreants into court somewhere.)

The ultimate answers depend on which countries’ laws apply. Although you automatically have a U.S. copyright in the design and drawings that you created within the U.S., that copyright by itself has no effect outside U.S. territory. What about rights in the other work that was created in India or in Taiwan? And what rights could you assert in Kuwait to prevent your design from being reused there?

Although you automatically have a U.S. copyright in the design and drawings that you created within the U.S., that copyright by itself has no effect outside U.S. territory

Finding the answers to these questions takes us to an international treaty, known as the Berne Convention, which dates from 1887 when it was first signed by seven European countries and Tunisia. One hundred one years later, in 1988, the U.S. finally signed on, and by now the great majority of the world’s countries have also. The result is that—very generally speaking—your U.S. copyright is enforceable in other parts of the world.

Among the few countries that are not parties to the Berne Convention are Taiwan and Kuwait. As a result, to determine rights in the work performed in Taiwan, it would be necessary to look at Taiwanese law.

India has joined the Berne Convention, so the Indian engineering firm’s misappropriation of your work could, in theory at least, be remedied. But it’s not entirely clear which country’s laws would apply. Even in international copyright cases heard within the U.S., our courts have not been consistent in deciding which country’s laws to apply. It’s even possible that more than one country’s laws could apply in the same dispute. In our hypothetical scenario, U.S. law might govern “issues of ownership of rights,” while Indian law might govern “infringement issues” if the infringement took place in India. Of course, if you were pursuing your claim in India itself, and U.S. law applied, it would be an Indian court that would be interpreting U.S. law.

Even in international copyright cases heard within the U.S., our courts have not been consistent in deciding which country’s laws to apply

That may be discomforting enough. But the real trouble may lie in Kuwait, which, although not a signer of the Berne Convention, is a member of the World Trade Organization. As a WTO member, Kuwait is formally obligated to abide by that organization’s international copyright agreement, called Trade-Related Aspects of Intellectual Property Rights. Provisions in TRIPS do not automatically become part of the internal laws of WTO-member countries, however, but require implementation by amending each country’s copyright laws. One source of information and commentary on the current state of other countries’ copyright laws is the International Intellectual Property Alliance, an organization that represents copyright-based industries.

Significance of the Berne Convention
All of this simply goes to show that any expectations you may have about copyright need to be reexamined once your business extends outside of U.S. territory. In addition, you may want to consider other methods, not based on copyright, for protecting your work, such as contractual requirements for confidentiality and non-disclosure.

Any expectations you may have about copyright need to be reexamined once your business extends outside of U.S. territory

There is a separate reason for the Berne Convention’s significance. One cannot understand why U.S. copyright law is the way it is without referring to the Convention. This is because a country cannot join without conforming its copyright laws to various Convention standards that generally follow European copyright law. Consequently, in the last 20 years Congress has amended the U.S. copyright statute in significant ways directly as a result of joining the Berne Convention. In future articles, we will discuss some of those changes.