Primary Sources on Copyright (1450-1900)

www.copyrighthistory.org

Identifier: d_1892

Bilateral copyright treaty between the German Empire and the United States of America, Leipzig (1892)

Friedemann Kawohl

Centre for Intellectual Property Policy & Management, Bournemouth University, UK

Please cite as:
Kawohl, F. (2008) 'Commentary on the Germany / U.S.A. copyright treaty 1892', in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

1. Full title

2. Abstract

3. Relevance for contemporary jurisdiction

4. References

1. Full title

Agreement of 15 January 1892 between the German Reich and the United States of America on the mutual protection of author's rights.

2. Abstract

Apart from the 1876 Industrial Designs Copyright Act for the German Empire (d_1876), which after multiple amendments is still in force, the Copyright Treaty of 1892 between the German Empire and the U.S.A. is the only piece of nineteenth-century legislation for the German-speaking lands that is still in force in its original form. The first bilateral agreements signed by the United States as a result of the International Copyright Act of 1891 (the Chace Act: us_1891a) were with Belgium, France, the British possessions, Switzerland, the German Empire and Italy in 1891 and 1892.[1] These treaties did not implement the ‘rule of the shorter term' that had been agreed on in the Berne Convention, but agreed, rather, on a strict ‘national treatment': i.e. where a country must grant the citizens of signatory state(s) the same rights as it grants to its own citizens. Even though the US eventually did accede to the Berne Convention, the treaty with Germany of 1892 is still in force and applied to contemporary cases.

3. Relevance for contemporary jurisdiction

In the Berne Convention national treatment was agreed on in Art. 5 as a rule applying to all protected subject matter, but as an exemption the ‘rule of the shorter term' was included in Art. 7. This allows the signatory countries to limit the duration of copyright they grant to foreign works to at most the copyright term the work is granted in its country of origin.

Even though the United States, on 1 March 1989, acceded to the Berne Convention (in the Paris version of 1972), the treaty with Germany of 1892 is still in force.[2] Under Art. 20 of the Berne Convention, the precedence of bilateral agreements is provided "in so far as such agreements grant to authors more extensive rights than those granted by the Convention".[3] Thus, in those cases the treaty of 1892 has priority over the Berne Convention and the TRIPS agreement of 1994, which refers to the respective provisions of the Berne Convention (Art. 9 to 21).

Unlike Art. 5 of the Berne Convention, the 1892 treaty does not provide national treatment for works of authorship in general, but is confined, rather, to the subject matter explicitly referred to in the treaty: that is, works of literature, fine arts and photography. Thus, the German Supreme Court (BGH) ruled in 1978, that films made by Buster Keaton between 1921 and 1928 were under German copyright even though the films were in the public domain in the US after right-holders had failed to renew their copyright for a second twenty-eight year term.[4] In 1986 it was held that Bob Dylan could not claim to be protected by the 1892 treaty for his performance rights, since these were always regarded as a neighbouring right rather than as proper copyright under German copyright law.[5]

In a German case in 2003,[6] though, a copyright was successfully claimed on the basis of the 1892 treaty. This legal dispute concerned translations of the so-called Big Book of Alcoholics Anonymous. The Big Book is this organisation's core document. Sometimes it is also referred to as the Blue Book from the colour of the original dust jacket. The copyright in the Big Book was registered by Bill Wilson (also William Griffith Wilson) (1895-1971), the co-founder of Alcoholics Anonymous. Wilson had written most of the text, but some chapters were probably contributed by other members of the organisation. Bill Wilson transferred his copyright to the Works Publishing Inc., and later to the Alcoholics Anonymous World Services, Inc. In the US, however, the Big Book (at least the first edition of 1939)[7] is out of copyright.[8]

A German member of Alcoholics Anonymous had published German, Hebrew, Swedish and Finish translations and was about to publish a Russian version when he was stopped by the US parent organisation.[9] The copyright in Germany had not yet elapsed because of the treaty of 1892. And, as a result, the AAWS Inc., the New York-based umbrella organisation of Alcoholics Anonymous, was able to stop the German ‘heretic' from publishing unlicensed translations that had not been approved by the umbrella organisation.[10]

On their website AAWS clearly describe how they manage to keep control of their texts. In principle they only allow their subsidiaries[11] to publish the books they claim to have copyright on - i.e. amongst other works, the Big Book in the fourth edition of 2001. Furthermore, as outlined in their explicit "translation policy", AAWS Inc. give financial assistance for publications to their subsidiaries in other countries, in return for control rights for distribution of the work. The AAWS retain title to the inventory, and the subsidiary has to pay them a proportion of the sale price. The policy also specifies that "all translations shall be made from the most recent, English language version of the work". The AAWS determine which chapters are to be included in the translation and what has to be left out:

"Whether any other material, which does not appear in the original, will be permitted to be included in the translation shall be determined on a case-by-case basis. Permission to include such additional material, where the material is in conflict with the message conveyed by the Big Book, will not be granted."

Thus, a critical edition can never be approved. Any request for permission for a translation into a language in which a licensed translation already exists will be denied. And if a translation does not yet exist, a censorship regime is established. Then:

"the requesting party will be asked to translate some representative portions of the work [...] so that the translation might be reviewed by a professional translation service for its consistency with the original text. The requesting party will also be asked to defer further work until the sample has been checked, and will be advised that, in any case, in order to obtain permission to proceed with the translation, the copyright in the translation project would have to be assigned to AAWS.

Once checked, and there has been agreement to assign the copyright to AAWS, the sample will be returned to the requesting party with either permission to proceed with the translation, or with recommendations for changes. In the latter case, the party will be requested to make further submissions until a satisfactory translation is achieved."[12]

This case shows that a piece of nineteenth-century legislation can be decisive even in copyright disputes of the twenty-first century. Furthermore, it links together the oldest and the newest German document within this digital archive. As in the 1479 privilege issued by the Bishop of Würzburg (d_1479), copyright here also served as a means for supra-national organisations to prevent critical reading and critical editions of 'canonical' texts.

4. References

Books and articles [in alphabetical order]

Goldstein, P. International Copyright: Principles, Law, and Practice (Oxford: Oxford U.P., 2001)

Hoeren, T. "Happy Birthday to you: Urheberrechtliche Fragen rund um ein Geburtstagsständchen", in K. P. Berger (ed.), Festschrift für Otto Sandrock zum 70. Geburtstag (Heidelberg: Verlag Recht und Wirtschaft, 2000)

Schack, H. "Leistungsschutz für Tonträgeraufnahmen mit ausübenden Künstlern aus den USA", Zeitschrift für Urheber- und Medienrecht (ZUM) (1986): 69-75

Nordemann, W. "The Term of Protection for Works of U.S.-American Authors in Germany", Journal of the Copyright Society of the USA 44, nr 1 (1996): 1-7

Cases

BGH (Bundesgerichtshof) 27.01.1978 „Buster-Keaton-Filme" in: Entscheidungssammlung des Bundesgerichtshof in Zivilsachen (BGHZ) Vol. 70 (1978) 268

BGH (Bundesgerichtshof) 14.11.1985 „Bob Dylan" in Gewerblicher Rechtsschutz und Urheberrecht International (GRUR Int.) (1986) 414

OLG (Oberlandesgericht) Frankfurt 07.10.2003 (11 U 22/00), available online at Landesrechtsprechungsdatenbank http://web2.justiz.hessen.de/migration/rechtsp.nsf/bynoteid/8019B44ABE988A9CC1256E55004A0462?Opendocument

[1] The dates are quoted in White-Smith Music Pub. Co. v. Apollo Co., 209 U.S. 1 (1908) The U.S. version of the treaty with Germany was published as Presidential Proclamation No. 24, 27 Stat. 1021 (April 15, 1892).

[2] Cf. Wilhelm Nordemann "The Term of Protection for Works of U.S.-American Authors in Germany", Journal of the Copyright Society of the USA 44, nr 1 (1996): 1-7; Thomas Hoeren, "Happy Birthday to you: Urheberrechtliche Fragen rund um ein Geburtstagsständchen", in Klaus Peter Berger (ed.), Festschrift für Otto Sandrock zum 70. Geburtstag (Heidelberg: Verlag Recht und Wirtschaft, 2000), 357 - 372. Available online at:

<http://www.uni-muenster.de/Jura.itm/hoeren/INHALTE/publikationen/Happy_Birthday.pdf>;

Heimo Schack, "Leistungsschutz für Tonträgeraufnahmen mit ausübenden Künstlern aus den USA", Zeitschrift für Urheber- und Medienrecht (ZUM) (1986): 69-75.

[3] Berne Convention for the Protection of Literary and Artistic Works. Paris Act of July 24, 1971, as amended on September 28, 1979 Available online at:

[4] Paul Goldstein International Copyright: Principles, Law, and Practice (Oxford University Press, 2001), 140.

[5] BGH 14.11.1985, GRUR Int. 1986, 414, 415f. - Bob Dylan. The treaty of 1892 was again taken into account when the EU Copyright Term Directive was to be implemented in German law in 1993. "Gesetzentwurf der Bundesregierung: Entwurf eines Vierten Gesetzes zur Änderung desUrheberrechtsgesetzes". Available online at: <http://dip.bundestag.de/btd/13/007/1300781.asc>

The Council Directive 93/98/EEC of 29 October 1993 harmonizing the term of protection of copyright and certain related rights. Available online at:

<http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31993L0098:EN:HTML>

[6] OLG (Oberlandesgericht) Frankfurt 07.10.2003 (11 U 22/00), available online at Landesrechtsprechungsdatenbank:

http://web2.justiz.hessen.de/migration/rechtsp.nsf/bynoteid/8019B44ABE988A9CC1256E55004A0462?Opendocument

[7] The German defendant in 2003 claimed that 400 copies had been published in 1939 without a copyright notice and thus the work was always in the public domain under the U.S. Copyright Act of 1909. Regardless of whether the original copyright of 1939 was lawful or not, the US copyright in the Big Book has elapsed, since the right-holders neglected to renew the copyright in the second edition of 1955.

[8] Thus claimed on Recovery.org, where the full text of the Big Book is presented, including the prefaces to the first, second and third editions. Recovery.org is maintained by a man called "Bill C." who himself is a declared Alcoholic Anonymous. His website, however, as he declares, is "neither endorsed nor approved by Alcoholics Anonymous World Services, Inc." <http://www.recovery.org/aa/sitecover.html#sitecopy>

[9] <http://gsowatch.aamo.info/ger/aaws2000.pdf>

[10] AAWS Inc. is a religious organisation, and like other such associations is keen on stopping critical editions of its core texts.

[11] "Intellectual Property Policy" of the Alcoholics Anonymous World Services, Inc. Available online at: <http://www.aa.org/en_privacy_policy.cfm?PageID=94>

[12] Translations of A.A. Literature, Including Publication and Licensing Considerations. Available online at: <http://www.aa.org/en_privacy_policy.cfm?PageID=34>