It is no use talking about copyright law in an international context, without knowing which law applies in which situation. There are three possible laws that apply: national law, EU (European Union) law and international law.
Why is this important for you as a small business owner? The world is becoming smaller because of the internet and you may want to use work from another country in your business. Or, you would like to take your business international and sell your copy, logos, photographs or anything creative to customers in other countries. The internet has made it possible for small business owners to go global. Knowing the basics about copyright law, prepares you for any possible pitfalls.
The basics of copyright law
Important to remember in which country copyright protection on your work was obtained for the first time. For a non-published work, your nationality determines the applicable copyright law and thus copyright protection. This usually only applies when someone else infringed on your copyright, by for instance publishing it. Before the moment of publication, nobody knows about the existence of the work and therefore you cannot claim copyright for it.
For published works, you’ll get copyright protection in the country where you first published your work. Publishing means more or less, making your work “public”. That doesn’t mean it has to published in a medium or on the internet. For example, when you are a painter, the work is public as soon as you put it on your wall or show it to potential customers. Maybe you are also a blogger and like to show your readers how the painting develops? Then the work is actually already published (public) before it is finished.
This is important to know, because some countries, like the USA, require you to follow certain procedures, such as registration and using the copyright © symbol before you get copyright protection. In the EU there are no such procedures and symbols in order to obtain copyright protection. You get copyright protection as soon as the work exists. There are some criteria of course (about that in a future blog post), but you don’t actually have to do anything to get copyright protection. A painting of your 2 year old could be a copyrighted work in the EU, as long as it fits the criteria. In the US, the work has to fit the criteria AND you have to register it and put the © symbol on it, for the work to be protected by copyright.
It is also important, because the way you can get copyright protection in other countries depends on the country where you first obtained protection. For example, if you first got copyright protection in Belgium and you would like to sell your work in the USA and have it protected there, that is possible under the Berne Convention.
The Berne Convention
The Berne Convention is one of the most important conventions in the EU and the world as a whole for copyright law. More than 160 countries use the Berne Convention. This means that all of these countries need to grant the same protection to work of people of other countries, as they would grant rights and copyright protection to their own citizens.
The Berne Convention also doesn’t allow any formalities. This means that the person – from the earlier example – who got copyright protection in Belgium, also gets protection in the USA without having to go through any of the USA’s registration procedures, but gets the same protection as any USA citizen would for their copyright protected work. This also means that if you cannot protect your work with copyright in the country you published it in for the first time, you won’t get copyright protection in other countries. National copyright laws are the basis of copyright protection worldwide.
For copywriters a common situation can be that their work was first published (went public) online. There are no clear rules for that situation (yet). Usually the language and the audience are relevant in determining which law applies. For example, a copywriter publishes an article on a website in Dutch that targets Dutch customers, but the site is hosted on a server in the USA. Most likely, the work is then considered to have been published in the Netherlands and Dutch copyright law applies.
It is important to know how copyright law works in the country you currently live in. That is the law that most likely applies and gives copyright protection to your work for the first time. When you would like to also obtain copyright protection in other countries, you will more or less get the same protection in those countries if these countries are part of the Berne Convention.
When your business would like to use copyrighted work that is protected in country A, while you want to use it in country B, and country A is part of the Berne Convention, you may treat the work as if it would be protected by copyright law in the country (B) you would like to use it in.
Of course, there are many nuances, too many to write about here. However, if you use the guidelines as described above, you will most likely not get in trouble.
This blog post is not a substitute for legal advice. It may not cover important issues that affect you. You should consult with your own lawyer if you have any questions with regard to copyright law pertaining to your situation. Of course you can also contact the author of this article for advice.
Charlotte Meindersma is an information law lawyer, based in The Hague, The Netherlands. She is a lawyer for creative and small businesses. She likes to ‘translate’ difficult issues into understandable words. You can read her Dutch law blogs here or follow her on Twitter and Facebook. Charlotte is writing a monthly series of blogs about legal issues small business owners run into when marketing their business online, internationally, and through social media.