Press Owned Copyrights – Joshua Cuellar

The Treaty Summarized for the Press

The Berne Convention Treaty is 29 pages, it applies to 178 countries and can be a daunting for the legal department of an international news organization to read through and make a determinations on what is lawful and what the organizations rights are. For the most part, the press and news media enjoys the same copyright protections that individuals, businesses and governments enjoy. So the terms apply equally to the 4 entities with the exception of:

News of the Day and Miscellaneous Facts are excluded from copyright protections.

Citizens of a contracting party, sometimes referred to as a member state of the treaty, are allowed to:

quote lawfully published, broadcasted or transmitted works.
make quotations from newspaper articles and periodicals to create press summaries.
fair practice and justified purpose is required in both instances.

Requires legislation for the following:

To exclude court proceedings authored by a court reporter from copyright protections.
To exclude speeches submitted in legal proceedings from copyright protections.
To exclude political speeches from copyright protections.
To address the presses ability to publish, broadcast or transmit lectures, formal speeches and similar works.
Note: The governments ability to legislate is this area is limited to public universities and government entities due to other treaties and contracts related to economic freedoms, national and international commerce, professional conduct, business ethics and business practices. Schools with students under adult age are additionally mandated to comply with privacy rights for minors such as FERPA in the US. Similar works might include a symposium, collegiate halftime ceremony or graduation at a tier 1 college or Ivy League.
To permit the press to reproduce, broadcast or transmit copyrighted works that have previously been published in newspapers or periodicals regarding economic, political or religious topics when those rights are not expressly reserved. Government also has a duty to define legislation describing the penalties for this specific breach of the treaty. Nothing prevents the government from defining the penalty as prison time nor does the treaty restrict penalties to monetary damages only. It is left up to each contracting party or member state to decide what the penalty should be.
Note: By default rights of publication, distribution, broadcast and transmission are always expressly reserved. Even in a case where a copyright holder assigned a Creative Commons attribution (CC-BY) or share alike (CC-BY-SA) license to their copyrighted works for public use, the copyright holder still retains the rights of publication, distribution, broadcasting and transmission and can provide a different licensing agreement for a fee.
Regardless of the legislation passed to address these issues; attribution to the copyright holder is always required for these specific instances if the default terms are changed.

Legislation is also required that defines the terms for reproduction of current events reported through photography, cinematography, broadcasting or transmitting and for literary works or artistic works seen or heard during the course of an event so that news of the event may be made available to the public due to its informatory purpose.

Addressing News of the Day and Miscellaneous Facts

Copyright law is a contentious subject event though it is based on ancient standard business practices that have become the globally recognized and accepted standard business practices. The fact that most international contracts and agreements are based on practices that are thousands of years old is not what gives these agreement their validity. The fact that these ancient protocols are consistently chosen as the standard operating procedure when given the option to try something else is what gives these ancient practices their validity and has caused these practices to be documented and codified into legislation and international treaties that is periodically reaffirmed through governmental and industrial peer review.

Regarding news of the day, this is taken as the town crier giving announcements. So a News Agency issuing a summary of what will occur on the 10’clock news is considered the news of the day. The actual 10 o’clock news is not considered the news of the day, even if it is broadcasted daily. The 10 o’clock news is regarded as speeches, cinematography, dramatic performances and artistic performances under copyright law.

Miscellaneous facts might include the weather forecast and the miscellaneous would be the actual temperature of the day. So someone could write down the temperature of the day and give credit to the news agency (or attribution) about where they got the data. Someone can not transmit, rebroadcast or distribute the actual weather segment without the copyright holders permission as this would violate copyright protections for distribution, reproduction, rebroadcasting, transmitting and creating derivative works. Someone also can not hold onto the 7 day forecast and distribute it each day nor can they distribute copies of the 7 day forecast unless it was collected independently. While this does not violate copyright laws, it does violate professional ethics and code of conduct for the scientific community regarding first hand research and peer review which is a separate, but related area of intellectual property law.
Note: The US Federal Government solves the dilemma of advancing sciences and art through copyright law by proving a broad license to the National Weather Service for its Citizens and International Partners through the US National Weather Service. Australia does something similar for its Citizens through the National Radar Loop provided by the Australia Bureau of Meteorology.

What is Fair Practice and Justified Purpose

Fair practice and justified purpose is often referred to as fair use and its quoted by “copyright experts” as the publics ability to make quotes, reproductions and limited transmissions for the beneift of advancing the arts and sciences. This verbage is found nowhere in the Berne Treaty and as it is an international treaty, the treaty overrides any provincial or local legislation unless a clause is included in the treaty allowing legislation in certain areas. Legislative requirements for the press are fulfilled by the Berne Treaty’s default rights for a copyright holder if no legislation is defined. By default this is all rights reserved.

“Fair use” is covered under Article 9 of the Berne Convention Treaty. The article leaves it up to contracting parties to define legislation for fair use. However; Article 9, Paragraph (2) requires leglisation to not conflict with normal exploitation of the work and that does not unreasonably prejudice the legitimate interests of the author (or copyright holder). Under the Laws of Standard Rules and Procedures for Professional Business Conduct, the public would not be allowed to derive an economic or educational benefit without just compensation to the copyright holder. In most developed nations, educational institutes charge tuition and have financial records so they fall under economic benefit.

Fair use requires approval by the copyright holder.

What Counts as “Educational Use”

Educational use includes the Paris Act 1971 which is an amendment to the Berne Convention and has 188 contracting Parties. The Paris Act allows developing nations to translate and reproduce works for educational activities without consent from the copyright holder. However, this ultimately requires payment of renumeration to be fixed by law. In the USA, this would take the form of statutory damages which is renumerated at a rate of $750 to $30,000 per work per infringement. The Law is defined in US Code Title 17, Chapter 5, Section 504.

Article 9, Paragraph (2) and Article 10, Paragraph (2) define primary requirements for educational use. The treaties primary text takes precedent over any additional acts and amendments unless the act or amendment specifically repeals or rescinds existing terms of the original treaty. Laws must always be consistent with the treaty.

Education is specialized use and it should apply only to public universities as private universities are run as a profit seeking university and should have enough revenues to remain solvent and pay appropriate licensing fees for its supplies, staff and materials under Laws of Corporate Management. Article 9, Paragraph (2) prevents legislation for specialized purposes to prejudice the authors legitimate interests.

Article 10, Paragraph (2) requires teaching purposes to be compliant with fair use and justified purpose.

Dramatic Works and Performing Arts

The Press has established that its authors have a legitimate interest in monetary compensation for its works, publications, broadcasts and transmissions.

Copyright law has existed prior to it being Codified in the Berne Convention Treaty 1886 but as literacy was below 3% in the USA prior to 1871 and below 12% globally prior to 1820 it was not seen as necessary to make the terms of intellectual property law made publicly available prior to the Berne Convention.

The intent of the Press to be included in copyright protections can be seen in the 1992 musical Newsies, a story about unlawfully exploiting the Press in 1899. In this movie, a singing press established that the their works were an artisitc works by delivering the news as a performing art. The Federalist Papers established this same precedent in by delivering what would be considered as news of the day and miscellaneous facts as articles and essays in 1787 and 1788 made available through professional publications.

Today, news agencies use segments with cinematography, artistic introductions to the news, speeches in the forms of interviews, debates and monologues to establish that they are creating and broadcasting or transm

Press Specific Terms, Where to Start

A Press or News Agency may want to have a lawsuit template ready to file in civil court by a paralegal or 1st year jr. partner working in their legal department. It’s important to understand that international treaties have the same level of authority as the US Constitution and US Code in the US meaning they override any State Level Legislation and unlawfully made service user agreements. This is established in Article VI, Paragraph 2 of the US Constitution.

For the most part, it is unnecessary to go past explaining the current terms of the Berne Convention and requesting statutory damages from the copyright infringers. However, it can be established that copyright law was in existence prior to the US Constitution and that the US is bound to these terms through Article 6, Paragraph 1 of the US Constitution. It can furthermore be proven that copyright law existed and was known about and implemented in the US prior to the Berne Convention Treaty 1886 by introducing exhibits of The Federalist Papers and demonstrating the publishing methods and literary styles they used.

Specific Text

In regards to copyright exclusion of press or news media created material there are only 5 articles that the Press needs to read and understand in addition to the summary of the Berne Convention Treaty.

Article 2, Paragraph (8) states that the Berne Convention Treaty does not apply to news of the day or to miscellaneous facts having a character of mere press information. You need to understand how to refute that your publication, distribution, broadcast or transmission is news of the day or miscellaneous facts.

Article 2 bis, Paragraph (2) states legislation is required to exclude political speeches, court proceedings, or lectures, addresses and other works to be reproduced for inflammatory purposes. You need to request that Congress inform your legal team anytime legislation is under review regarding what is considered informatory purposes and the terms of any other exclusions for copyright protections.

Article 9, Paragraph (2) states that it is required that exclusions for special cases do not conflict with the legitimate interests of the copyright holder. This includes “fair use” and “educational” use.

Article 10, Paragraph (1) states that it is allowed to make quotations from newspaper articles and periodicals in the form of press summaries. Normally, the press provides its own press summary in the form of table of contents in the newspaper or a summary of segments for television or radio broadcasts. Economic impact must be considered when making third party summaries but it is normally seen as o.k. to discuss what topics a certain news channel will cover or which papers are covering topics you are reviewing or interested in. You can normally not make a summary of a news segment but you can attribute certain information to a certain journalist or reporter. This is covered in Rules of Professional Conduct for Authors and the goal is to avoid plagiarism.

Article 10^bis, Paragraph (1) states that member states are required to make legislation regarding:

the press making reproductions of
- newspapers by transmitting them by wire (internet, fax, telephone cables)
- regarding topics of economic, political or religious topics
- broadcasting of economic, political or religious topics when the rights to broadcast, reproduce and distribute are not expressly reserved.
- Conditions for reporting current events through photography, cinematography, literary works or artistic works.

The Paris Act, an amendment to the Berne Convention Treaty. Allows developing nations to violate a copyright holders rights without consent for the purpose of creating translations and for educational purposes but requires them to pay statutory damages defined in legislation. The US Code defines these damages in Title 17, Chapter 5, Section 504 and are currently set at $750 to $30,000 per work, per infringement.

Regardless of the legislation passed, attribution is always required for excluded and special cases.

Most of these goals for information dissemination can also be accomplished by a limited publication, distribution, broadcast and transmission license that is assigned on a case by case basis to competent parties who respect the image and reputation of the copyright holder and who will not tarnish it through their limited license. Using a license provides the best method as it prevents a distributor from using the content in a way that is defamatory to the copyright holder and it is the current standard business practice in the US.

References

Summary of Berne Convention for the Protection of Literary or Artistic Works 1886
https://www.wipo.int/treaties/en/ip/berne/summary_berne.html
- Full Text of Berne Convention for the Protection of Literary or Artistic Works 1886
  https://wipolex.wipo.int/en/text/283693
  - Contracting Parties
    https://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=15
- Paris Act to the Convention for the Protection of Literary Arts and Artistic Works 1971
  https://treaties.un.org/doc/Publication/UNTS/Volume%201161/volume-1161-I-18338-English.pdf
  - Contracting Parties
    https://www.wipo.int/treaties/en/ActResults.jsp?act_id=26
Paris Convention for the Protection of Industrial Property 1883
- Hague Conventions 1925 Contracting Parties (US, UK, FR)
  https://www.wipo.int/treaties/en/ActResults.jsp?act_id=27
- Stockholm Act 1967 Contracting Parties (US, UK, FR, RU, CN)
  https://www.wipo.int/treaties/en/ActResults.jsp?act_id=31
US Code Title 17
https://uscode.house.gov/browse/prelim@title17&edition=prelim
US Code, Title 17, Chapter 5, Section 504 (statutory damages)
https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title17-section504&num=0&edition=prelim
US Code, Title 17, Chapter 1, Section 107 (limitations of fair use)
https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title17-section107&num=0&edition=prelim
Public Law 94-553
https://www.congress.gov/bill/94th-congress/senate-bill/22
US National Weather Service by the US National Atmospheric Administration
https://www.weather.gov/
Australia National Weather Loop by Australia Bureau of Meteorology
http://www.bom.gov.au/products/national_radar_sat.loop.shtml
Literacy, published by Our World in Data
https://ourworldindata.org/literacy
The Spread of Education Before Compulsion: Britain and America in the Nineteeth Century
https://fee.org/articles/the-spread-of-education-before-compulsion-britain-and-america-in-the-nineteenth-century/
Unpublished notes on literacy rates from the English Renaissance to the Information Age by Joshua Cuéllar
Newsies Synopsis by Internet Movie DataBase
https://www.imdb.com/title/tt0104990/
The Federalist Papers: Primary Documents in American History by US Libarary of Congress
https://guides.loc.gov/federalist-papers/full-text
The Federalists Papers by Wikipedia
https://en.wikipedia.org/wiki/The_Federalist_Papers
Federalist Papers by History .com
https://www.history.com/topics/early-us/federalist-papers