Why Did the United States Wait 103 Years to Join the Berne Convention?

The Berne Convention is the oldest and most widely adopted international copyright treaty. However, for more than a century, the Berne Convention was missing an important signatory: The United States.

Originally signed in Berne, Switzerland on September 9, 1886, the treaty aimed to create an “International union for the protection of literary and artistic works” and included the original signatories, Belgium, France, Germany, Great Britain, Haiti, Italy, Spain, Switzerland, and Tunisia.

Though the treaty would grow, change and expand in the decades that followed, the United States refused to become a signatory. This included through the early and mid-20th century as the nation’s military and economic might positioned it as a superpower.

It wasn’t until 1989 that the United States became a signatory to the treaty. That same year, the USSR announced its intentions to do the same though the USSR was dissolved before it could happen (The Russian Federation would join in 1994).

This raises a pair of simple questions: Why did the United States wait over a century to sign the Berne Convention and why did it change its mind in the 1980s? To understand that, we have to look at how U.S. Copyright Law worked for much of the 20th century to see why the country felt it was better off going it (relatively) alone.

A Brief History of the Berne Convention

In the late 19th century, the appetite for printed works was growing. Though most nations had some form of copyright law (the Statute of Anne being passed in 1710), those laws did not work across national borders. A printer in one country could print the work of an author from another without permission or payment.

Though countries would sometimes sign copyright treaties, a broader approach was needed. This process was spearheaded by author Victor Hugo, which gives the treaty much of its French influence.

The treaty itself had three basic principles, all of which still apply today:

1. Lack of Formalities/Simplicity: Signatories cannot force creators to register their work or include specific notices to qualify for copyright protection. The protection applies once a work is created.
2. Minimal Standards for Copyright: Though the treaty does not dictate specific local laws for copyright protection, it requires countries to meet a specific minimum. This includes both the protections offered and the term of those protections.
3. Countries Treat Foreign Creators the Same: Finally, that signatories agree to extend the same protections they offer their citizens to foreign creators. As such, a French author filing a lawsuit in the UK would have the same rights as a UK author.

The treaty would go on to be revised some 7 times (IN 1896, 1908, 1914, 1928, 1948 1967 and 1971) and it was amended in 1979. However, more importantly, the treaty grew in terms of signatories. By 1989, well over 120 nations signed the treaty.

However, the United States wasn’t among them. Though the Berne Convention was well on its way to becoming the most important international treaty on copyright, the U.S. was not a part of it. To understand why, you must look at the nature of U.S. copyright law for the bulk of the 20th century.

An Incompatible Law and an Incompatible Ideology

The Copyright Act of 1909 was the first major copyright act the United States enacted after the original signing of the Berne Convention. Theoretically, it was an opportunity for the United States to bring its laws in alignment with the Berne Convention and set the stage for becoming a signatory. However, that was not the route the country went.

Instead, the Copyright Act of 1909 was wholly incompatible with the Berne Convention, providing a much more limited copyright term (28 years plus a 28-year extension), requiring formalities (including both registration and a copyright notice) and did not apply to unpublished works, leaving those matters to state law.

Furthermore, it only applied to certain types of work listed in the law itself. Sound recordings, for example, were not added into the law until 1972. Though it certainly expanded rights when compared to the 1790 act it replaced, it was still a very limited copyright law that represented a country still wanting states, not the federal government, to take much of the lead.

Still, the United States wanted and needed copyright protection on an international scale and it entered into a variety of other treaties, including the Buenos Aires Convention in 1910, which brought together nations from North and South America and the Universal Copyright Convention in 1952, which was similar to the Berne Convention its reach and extension of mutual copyright, but allowed the U.S. to keep its current requirements and terms.

As a result of these efforts, the United States enjoyed many of the benefits of being a member of the Berne Convention but kept its limited term and formality requirements. So, why did it change its mind? That process begins in the 1970s.

Coming On Board

Cracks in this system began to show by the 1970s as new technologies kept requiring revisions and addition to U.S. copyright law. To make matters worse, the United States was struggling to keep up with changes to the Universal Copyright Convention and copyright modernization was necessary.

The United States passed the Copyright Act of 1976, which was the first major copyright act since the 1909 one and was an attempt to modernize U.S. copyright law. The act extended the term to bring it in compliance with the Berne Convention, it relaxed formalities (but kept registration requirements for certain protections) and applied to all works as they were fixed into a tangible medium of expression.

But, as much closer as this was to the Berne Convention standards, it wasn’t perfect. The law did not recognize moral rights, non-commercial rights of the author recognized in other nations, and the registration requirements were a problem. The country wasn’t ready to join the Berne Convention yet.

However, that work began in earnest in 1986, the centennial of the original Berne Convention signing. It was then that President Regan expressed support for joining the Berne Convention. However, it was also acknowledged that doing so would require new legislation.

As such, the country passed the Berne Convention Implementation Act of 1988, which took effect in March 1989. The act took a minimalist approach to compliance with the Berne Convention standards and implemented only the most basic elements of moral rights and maintained the registration requirement for the country’s citizens (foreign nationals can file a lawsuit in the U.S. without a copyright registration, though are limited in the damages they can collect).

With that law passed, the United States was finally able to join the Berne Convention in 1989, ending a 103-year absence.

Bottom Line

To answer the question the title of this articles asks: The United States didn’t join the Berne Convention because its copyright was inherently incompatible with the convention, and it didn’t have enough motivation to overhaul its laws to bring it into compliance. That was especially true since, through other treaties, the nation was able to enjoy many of the benefits of being a Berne member but keep its unique laws.

However, technology changes made that approach untenable, and the United States passed its own copyright act with many Berne elements in it. After that, joining the act was merely a matter of legislating the remaining elements and passing them into law.

But that really isn’t the end of the story. Though the U.S. is a signatory of the Berne Convention now, it still has a registration requirement if you want to enforce your rights in court, making its own citizens jump through hoops other creators don’t, and its application of moral rights is extremely limited. The United States is still very much a nation that wants to enjoy the benefits of the Berne Convention but is wanting to keep its quirks and oddities, no matter how much they harm local creators.

The United States didn’t change its mind and join the Berne Convention, it was forced to by a practical reality and its method of compliance is proof of that. Even today, the United States is dragging its feet on these issues, refusing to ditch antiquated and harmful approaches to copyright, even as the rest of the world moves forward.

This is simply one area where the United States is lagging behind even as it is trying to lead.

Additional Reading: I highly recommend reading this article by Michael J. Remington on the Copyright Alliance website about the process of the United States joining the Berne Convention.