Intellectual Property Law

Berne Doesn't Seem To Be Self-Executing

By Marty Schwimmer

Sometimes decisions are interesting because the issue in contention is so apparently uninteresting (by this point). The Berne Convention pretty much (but not exactly) says that it is not self-executing. There are many U.S. decisions that say that it is not self-executing (and every SDNY decision holds that it is not). Congress, when it implemented Berne, concluded that it was not self-executing, and considered whether it needed to amend Section 412 of the Copyright Act (which requires plaintiff to have registered its work in order to be eligible for statutory damages), in view of Berne's provision that 'the exercise of rights not be subject to any formality [such as US registration]." It then consciously decided not to amend Section 412. Courts have held that the 412 requirement doesn't contradict Berne, as statutory damages are the enhancement of a right, not a right in and of itself.

Here, plaintiff seeks statutory damages for unregistered foreign copyrights, arguing that Berne preempts Section 412, which argument the Court quickly dispatches. All I'll say is: that's interesting.

Decision Reed Elsevier Berne

Full post as published by Trademark Blog on January 20, 2010 (boomark / email).