Moscow's Copyright Maneuver
GAMSON, RHODA F.
PROTECTION FOR WHOM? Moscow's Copyright Maneuver BY RHODA F. GAMSON When the Soviet Union announced its decision to join the Universal Copyright Convention (UCC) last February, marking the first...
...but (3) it may impose "formalities and other conditions" applicable to works by its citizens published at home or abroad...
...Many countries have voluntarily banded together to safeguard the rights of each other's citizens, however, beginning with the International Copyright Union of 1866, popularly called the Berne Convention...
...The legislation that implements these principles is enacted on the second level by the 15 individual Republics of the Soviet Union...
...And in Washington, Senator John L. McClellan (D.-Ark...
...copyright law requires certain formalities-including deposit and registration in the Copyright Office and American manufacture?that the Berne Convention deliberately eliminates...
...For reasons that will soon become apparent, Soviet domestic copyright law is still thought to be in conflict with the clear intentions of the original UCC signatories, as set forth in the Preamble: "To assure in all countries copyright protection of literary, scientific, and artistic works," in order to "ensure respect for the rights of the individual and encourage the development of literature, the sciences and the arts, and facilitate a wider dissemination of works of the human mind and increase international understanding...
...Addressing the U.S...
...has introduced a bill protecting the rights of foreign authors whose own country's laws attempt to divest them of U.S...
...The ploy would fail if, say, all U.S...
...U.S...
...One of the really sticky problems being discussed by the member nations of UNESCO concerns the use of relay satellites for radio and television...
...Though approving its objectives, the United States has never been a party to it...
...In question, too, is the extent of the protection that will actually be afforded the books, plays, songs, paintings, or other creations of Western artists...
...The U.S...
...No Soviet house dares to accept his work...
...publishers agreed to boycott an approved work withheld from any one of them for retaliatory reasons...
...The extended clauses of the 1971 UCC that apply to broadcasting are especially important because of the new space technology...
...4. Reproduction in newspapers...
...With the rapid advance of satellite technology, the problem will become more acute...
...Disputes over the interpretation or application of the UCC are to be adjudicated by the International Court of Justice at The Hague, but no such case has ever been taken to it...
...and other countries oppose it on the grounds that any attempt to regulate the use of outer space for broadcasting would run contrary to UNESCO's statutes promoting freedom of expression, which has been construed to encompass an author's right to his own material...
...But the United States is a member of the 1952 Universal Copyright Convention, sponsored by UNESCO, and this is the accord the Soviet Union has now decided to join...
...The Soviet Union favors the establishment of an international agreement to regulate such broadcasts...
...Despite constant personal harassment and the banning of his books in the Soviet Union, his international acclaim has enabled him to have his works published abroad...
...For example, a portion of copyrighted material may be quoted without consent or payment when it is "reasonable and customary," as in reviews and critiques, or when it is a minor part of the entire work...
...To see what might happen, let's follow the case of a hypothetical Russian author who is not officially acceptable...
...He decides to smuggle his manuscript out and manages to assign publication rights to an American publisher...
...The World Court may also give advisory opinions at the request of the General Assembly, Security Council or other UN organs such as UNESCO...
...In this context, it is noteworthy that the Soviets have chosen to accede to the 1952 Universal Copyright Convention and not the more explicit revision of it adopted in Paris on July 24, 1971...
...When that happens, a country wishing to join the UCC will no longer be able to opt for the looser 1952 terms, as Moscow did, although they will remain in force for members who do not want to upgrade their position...
...Ultimately, the Western literary community must impress upon the Soviets that it will not be intimidated...
...Furthermore, these rates can be arbitrarily changed by administrative order if the author is in particular favor?or disfavor—with the government...
...In addition, the UCC has established an Intergovernmental Copyright Committee, composed of representatives of 12 of the contracting states, charged with studying problems that might arise in the operation of the convention...
...Because the complete Soviet code has not yet been made available, its full impact is difficult to assess...
...The new agreement, already ratified by the United States, France, Hungary, and the United Kingdom, will go into force as soon as another eight countries have signed it...
...This is a serious omission, considering that these areas account for a substantial part of many American authors' incomes...
...Most experts believe that the committee has the authority to advise whether the copyright law or proposed copyright legislation of a given country meets UCC requirements, but that its recommendations would not be binding on anyone, not even the committee, which may freely reverse itself...
...For those Soviet writers whose work is approved by the Kremlin, it is not expected to have much significance...
...The government will continue to dictate their contracts and royalties...
...books are protected in Berne countries by being published simultaneously in one of the member nations, usually Canada...
...It covers public performances of published works, dissemination of published works by recordings, and a composer's use of a published literary work for creating a musical work with text...
...Although it is questionable that a suit involving an involuntary assignment would stand up in American courts, where it would have to be brought, the possibility of the Soviet government forcibly purchasing an author's copyright has caused great concern in Western literary circles...
...5. Reproduction of printed works for scientific or educational purposes, "without deriving profit...
...At the same time, the Kremlin may be assuming that Western publishers, eager to acquire the works of approved Russian writers, will now hesitate to publish dissident writers for fear of being blacklisted by the Soviets...
...There are three levels of law in the USSR, and what Rhoda F. Gamson is the director of the contract and copyright department of Farrar, Straus & Giroux...
...Copyright Society last month in New York, Dr...
...2. Reproduction of works "published separately" and/or portions thereof in scientific and critical journals and in "political enlightenment" publications...
...This means that the value of UCC coverage depends almost entirely on the scope of protection available in the country where it is being sought...
...Moscow's Copyright Maneuver BY RHODA F. GAMSON When the Soviet Union announced its decision to join the Universal Copyright Convention (UCC) last February, marking the first time it ever subscribed to this kind of international agreement, authors and publishers in the West hailed the action as long overdue...
...No other participant or governing body has to pass on new entrants, nor can a country be denied admission...
...In American courts, "fair use" is normally defined as any use (or copying) that does not constitute an infringement of an author's copyright...
...Nevertheless, from what little we do already know about Soviet law it is possible to delineate the broad outlines of what Moscow's adherence to the Universal Copyright Convention may mean...
...The Soviet regulations appear to say that any work can be freely reproduced as a whole for educational purposes, as well as in newspapers, motion pictures, and on radio and television, without the consent of or payment to the author...
...The Embassy has also asked the Soviet authorities for clarification of pertinent clauses in its copyright law...
...The Western nations can officially declare, though, that Soviet domestic laws in violation of the spirit of the UCC will not prevent them from publishing dissident writers and extending copyright protection to Russian works published abroad...
...Anything published prior to that date will remain in the public domain so far as the USSR is concerned...
...Membership is completely at the initiative of the joining country...
...Ivan Tovarich has been thrown out of the Writer's Union because his works are not "socially useful...
...But whether Tovarich owns up or not, under an old Soviet statute the government could forcibly purchase his copyright, and then, claiming to be the copyright owner, sue the foreign publisher for infringement of its rights...
...publication outside the USSR will continue to be handled by an official Soviet agency, and the author's share of such income is unlikely to be large...
...In an open letter to UNESCO they warned that Soviet officials might use the imprint of the UCC to give international legality to the USSR's oppressive rules of censorship...
...3. Reproduction in motion pictures, and over radio and television...
...Similar public pressure could be applied to cope with the Soviets' reasons for joining the convention...
...Dissident writers, on the other hand, may find their condition worsening under the UCC...
...But it would be premature for them to anticipate enormous windfalls, because Soviet royalties are paid in amounts corresponding to official tariffs provided for other work of a similar character...
...only the government of a member nation can do so...
...Article 103 of the amended "Principles of Soviet Copyright Law" stipulates that an author's work may be used without his consent or any payment of royalties in a long list of circumstances, including: 1. The use of a published work to create a new, creatively independent work (except for the adaptation of fiction into a stage or screen play, and vice versa, as well as the adaptation of a stage play into a screen play, and vice versa...
...No mechanism exists for an individual author or publisher in one country to challenge the harmony of another state's domestic laws with the UCC...
...Alexander Galich and Vladimir Maximov...
...and (2) that each contracting country grant the same protection to works of nationals of member countries that it grants to domestic works...
...Western authors wonder, too, to what extent the Soviets intend to make free use of their works "in the interest of society...
...Even more, it must make clear that it will do everything in its power to protect the rights of all authors, in accord with the United Nations Declaration of Human Rights, which proclaims "the right of everyone to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author...
...Despite widespread misconceptions to the contrary, there is no such thing as an international copyright that automatically protects a work throughout the world...
...Should he admit he did, the government would almost certainly institute criminal proceedings against him for breaking the law, defaming the USSR, etc...
...As for Western authors, they can look forward to receiving royalties on any of their works published after May 27, the date Soviet membership in the UCC becomes effective...
...At the present moment, however, the most important question is what can be done about any possible Soviet noncompliance with the spirit and specific provisions of the 1952 convention...
...Intended to define more precisely the general obligation of states to ensure "adequate and effective" protection of author's rights, the new accord calls for specific guarantees of exclusive rights over reproduction, public performances and broadcasting—extending not only to works in their original form but in any form recognizably derived from the original...
...American writers hope the procedure will be different than it was in the past, when the few authors deemed worthy of royalties were paid in blocked rubles that could be spent only in the Soviet Union...
...But after seeing the central Soviet copyright law as ostensibly modified to conform with the convention, experts have begun asking whether the Kremlin might not be planning to use its UCC membership to prevent dissident writers from publishing their manuscripts abroad...
...Upon learning this, Soviet officials confront Tovarich and ask if he authorized its publication...
...It has also inspired a courageous public statement by six distinguished Moscow intellectuals?physicist Andrei D. Sakharov, mathematicians Igor Sha-farevich and Alexander Voronel, geophysicist Grigory Podyapolsky, and two writers who have published abroad...
...Another category of exceptions does not require the author's consent, but calls for royalty payments...
...The obvious discrepancy between the tighter language of the 1971 document and the Soviet statutes may well have influenced the Kremlin's decision to join the earlier convention while there was still time...
...But the most potent weapon against Soviet abuses may be the continued pressure of world opinion...
...The fact, that his latest novel is on the samizdat bestseller list doesn't help...
...On the third level, copyright law is affected by labor regulations and by the rules and procedures of administrative bodies (particularly the Ministries for Culture and the State Committees) that determine everyday practice in such matters...
...we have in hand so far is merely the "federal" structure of 11 articles devoted to the principles of copyright...
...The U.S...
...Yuri Matveev, senior lecturer at Kiev State University, announced that we should soon know how, and in what currency, royalties will be paid...
...In essence, the UCC provides: (1) that each contracting state give authors, composers and artists "adequate and effective" protection for their rights in their works...
...Under the UCC, Russian works published in other nations would bring much needed—and wanted—hard currency to the USSR...
...Embassy in Moscow has already advised the Soviet government that in our view the UCC does not require American courts to enjoin the publication of works written by Soviet citizens in violation of their domestic laws...
...Given the present political situation, it is highly unlikely that either the Soviet Union or any Western country would be anxious to use the cumbersome procedures of the International Court or the UCC's advisory Intergovernmental Committee...
...All this goes far beyond the Western concept of "fair use," generally considered the most troublesome issue in the whole area of copyright...
...It need only submit its papers of ratification to UNESCO headquarters in Paris, thereby signifying that it has brought its own laws into harmony with the UCC's requirements...
...copyright...
...It has certainly been effective in the case of Nobel Prizewinner Alexander Solzhenitsyn...
Vol. 56 • May 1973 • No. 10
