Nowhere was this more evident than the recent passage of the controversial 2019 EU copyright directive, which drew criticism for inclusions of provisions that required hosts to ensure infringing material was not re-uploaded and requiring aggregators to pay for the use of headlines and news snippets.
The law, which is still in its two-year implementation phase, represents a massive difference between EU and US copyright law. However, it’s far from the only one.
Though a lot of people like to talk about “international copyright law” the truth is that there is no such thing. While there are treaties that attempt to harmonize copyright protection in certain ways, they are far from complete.
There are many ways that laws differ from nation to nation and, with the EU ascending in important, it’s worth taking a look at some of the key ways EU law is different from US law.
To that end, here are ten notable differences between the EU and the US on matters of copyright.
1: Fair Use (and Related Exemptions)
In the United States, Fair Use is one of the most important aspects of copyright law. It grants a broad set of exemptions that allow others to make use of copyright-protected work without permission. Since 1994, the focus of fair use has been on whether the new work is transformative, which has enabled a wide variety of uses that otherwise would have been impossible.
However, this concept is uniquely American. Other nations, including those in the EU, do not have as broad of a view on fair use. Some, like the UK, have fair dealing, an approach that is similar to fair use but is generally narrower and more targeted at very specific exemptions.
Other countries don’t have a statutory fair use or fair dealing exemption at all but may have carved out such exemptions for parody or criticism either in the law itself or through precedent.
In the EU, this is not an area that his harmonized, so every nation is different. However, it’s safe to say that no nation in the EU has as broad of a fair use exemption as the United States.
2: Moral Rights
Moral rights are the rights of an artist to claim authorship in their work (IE: Right to attribution), object to offensive or derogatory treatment of the work, including destroying it.
Though moral rights are a part of the Berne Convention, of which the U.S. is a signatory, the U.S. never fully implemented moral rights into their code. Instead, it passed the Visual Artists Rights Act (VARA) a law that extended moral rights to an extremely limited subset of visual works.
As with fair use, this limited view on moral rights is another uniquely American element. Copyright holders in the EU enjoy much broader more rights. However, this is true in much of the rest of the world as well.
3: Works Made for Hire
In the United States, if you are an employee for a company and created a copyright-protected work as part of that employment, it is considered a work made for hire. The company becomes the rightsholder of that work automatically.
Though this concept is not uniquely American, it is also not the only approach. In the EU, work for hire is not harmonized so different nations take different approaches. In some countries, there is no work for hire clause at all, which means that, barring some additional agreement, employees continue to own their creations.
Other countries in the EU have implemented work for hire but, in some cases, it is extremely limited while, in others, they take a more US-like approach. Regardless, one cannot blindly assume that the employer is the rightsholder of a work in the EU. Additional verification is required (including considerations for moral rights).
4: Copyright Term
Most works created today (and in recent history) will enjoy a copyright protection term of the life of the author plus seventy years in both the EU and US. This is something that is harmonized by the EU so all member states follow it.
However, there are other differences in the copyright term. For example, in the EU, an anonymous work is protected for 70 years after publication. However, in the United States, anonymous works are granted a term of either 95 years of publication or 120 years from publication, whichever is less.
In the United States, works of corporate authorship follow the same rules as anonymous works but, in the EU, they follow the term laid out for individual authors. That means those works would enjoy the copyright term of life plus seventy if the author is known and 70 years if the author is anonymous.
While these might seem to be edge cases, there are still times where a work, even one created today, can have a vastly different copyright term in the EU and the US.
5: Registration Requirement
Though both the EU and the US agree that copyright is affixed to a work at the moment of creation, the United States requires that you register the work before filing a lawsuit and timely registration (either before the infringement or within three months of publication) is necessary to secure statutory damages and attorneys’ fees.
The EU, however, has no such requirement. In fact, EU law forbids any member state from implementing such a requirement.
The registration requirement is, once again, a uniquely American concept. No other nation has such a requirement and it is technically disallowed by the Berne Convention Treaty. However, as with moral rights, this is an area that the United States never fully implemented.
Because of the treaty, non-US citizens can sue in US court without a copyright registration, something that the country’s own citizens cannot do.
6: The Copyright Symbol
As we discussed back in March, the copyright symbol is an archaic device that was first introduced by the US in the Copyright Act of 1909 and became shorthand for the word “copyright” in 1954.
Its importance was because, up until 1989, a work without a copyright notice was not considered copyright protected and lapsed into the public domain. This is exactly what happened to Night of the Living Dead.
Though that formality is not required today, a copyright notice still can be useful in preventing an innocent infringer defense. The EU does not have and never had any such formality requirements, much like with copyright registration.
As such, the copyright symbol is completely meaningless from a legal standpoint in the EU where it still holds some small, token value in the US. Despite that, the EU does recommend using a copyright notice to indicate ownership to others.
7: Notice and Takedown
In the United States, rightsholders (or their designated agents) can file a Digital Millennium Copyright Act (DMCA) notice to compel a web host (or other online service provider) to remove infringing material.
However, that DMCA notice has some extremely specific requirements. It must contain necessary contact information, several sworn statements and other details.
The EU, on the other hand, has a similar notice and takedown system but one that is absent such specific requirements. Though countries like Hungary and Finland have implemented such requirements, most have not or have drawn their requirements from the country’s common law.
All of that said, the US DMCA template has become the de facto standard for such takedowns. This is not only because so many hosts are based in the US, but because no country has a tougher requirement, meaning it works reasonably well in all nations that have a notice and takedown regime. .
8: Copyright Reversion (Copyright Termination)
In the United States, if an original creator either transfers the copyright or grants an exclusive license to a third party, they have the right to terminate that agreement some 35 years after publication (or 40 years after the execution of the grant, whichever comes first).
While this doesn’t apply to works made for hire, it’s a broad right that many creators use to recover their rights or renegotiate their contracts for a better deal.
However, in the EU, there is no such broad time-based right. Though there was an attempt to have some limited reversion rights put into the latest EU Copyright Directive, it was not implemented.
Instead, we once again have a mashup of different country’s approaches. However, in much of the bloc there is a rule that kicks in if a work is not being exploited. In German law, for example, an author can terminate their contract if there’s been no appropriate exploitation within two years of it being signed.
There is an EU-wide reversion right for music performers but only if the recordings aren’t being effectively exploited. That takes effect after fifty years.
In the US, however, creators can terminate such agreements even if the work is being actively exploited and used and regardless of the terms of the original agreement.
9: The “Link Tax”
We end this on two recent changes made as part of the recent copyright directive. The first is the so-called link tax, which is neither a tax nor has anything to do with links.
The law requires search engines and other aggregators to pay a royalty to news publications for using headlines, snippets and thumbnails from their content. This right has an expiration period of one year.
This change is in stark contrast to the US, where such content is either considered to be unprotectable by copyright or, at the very least, have their use protected under fair use.
Because of this, the article it was a part of (11 in the draft and 15 in the final) was deeply controversial and became one of the two lightning rods over the course of the debate.
10: Notice and Stay Down
Finally, in another change from the latest copyright directive, article 13 (17 in the final version) implemented a “Notice and Stay Down” system that requires hosts to not just remove infringing material, but to prevent that material from being reuploaded.
Under the law, services that exist for the primary purpose for displaying copyrighted works uploaded by users and that somehow optimize that content (as well as meet other requirements) have to implement a system to prevent the reuploading of infringing material.
In the United States, there is no such requirement. This has led to many complaining about DMCA Whac-A-Mole as content removed just keeps popping up.
That said, many larger providers, including YouTube and Facebook, have implemented filtering systems already. However, these were in response to objections from rightsholders and the sheer volume of notices they were receiving.
Ultimately, this is just a handful of highlights when it comes to the differences between EU and US copyright law. Researching this article, I easily found a many, many more differences.
The point of this article isn’t to shine a light on every single difference between the two, but to show why there is no such thing as “international copyright law”. Though some things are reasonably well harmonized, many are not.
Copyright law is massive, complex and heavily nuanced. The areas that are effectively harmonized only make up a small percent of the subject.
As such, you can never assume that your rights in one country as the same as in another. This is especially true as copyright law appears to be in a period of massive change, especially outside the US, and many more differences are set to be created.
This is a space to continue watching.