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Wow, I didn't realize that they actually took some stuff that was in the public domain and put it back under copyright. Very very interesting.

by tibbon 15y ago

adestefan 15y ago
Note that the retroactive copyright only applies to foreign works. The Berne Convention requires a country to apply the same copyright protections to foreign works as the country of origin. It began as an effort to standardize copyright terms throughout Europe in the late 19th century. The US didn't become a participant until 1989 which is why the retroactive law was passed.
- TheAmazingIdiot 15y ago
  US Constitution Article 1, Section 9, Paragraph 3 "No Bill of Attainder or ex post facto Law shall be passed." Will a legal scholar or similarly minded person please explain why this isn't an ex post facto (after the fact) law?
  - deleted 15y ago
    [deleted]
  - adestefan 15y ago
    You're looking for Calder v Bull where the Supreme Court decided that ex post facto only applies to criminal law and not civil law. It makes a distinction between a law that changes punishment and law for criminal proceedings or a law that is merely retroactive.
    - TheAmazingIdiot 15y ago
      If I'm reading correctly from Wikipedia, that decision was somewhat ambiguous. It either indicated that the State legislature had the right to order a re-review of a will, overturning a previous judgement. SCOTUS seemed to me more concerned about rights of a state legislature. Also, the Constitution does make the distinction between civil and criminal. It says "Make no law", which is in the similar wording that the Bill of Rights, Amendment 1 states.
  - a-priori 15y ago
    I'm no legal scholar, but I think I see the distinction. By ex post facto, the US Constitution refers to a law that allows prosecution of offenses that occurred before the law was passed. That allows for all sorts of horrible abuses of power. I think it's safe to assume that there's a grandfather clause in the US law to comply with the Berne Convention, in order to allow uses of works under copyright that were in public domain at the time. If that's the case, then it wouldn't be considered ex post facto according to the US Constitution. Going forward, however, the work is copyrighted and can't be used without the permission of the author.
- tzs 15y ago
  It should be noted that Berne doesn't actually require that foreign works receive the same protection as domestic works. Essentially Berne says foreign works have to receive a certain set of explicit protections, and that if your copyright law provides additional protections to domestic works it has to also provide those to foreign works. It is acceptable under Berne to provide domestic works with LESS protection than is provided for foreign works. The US does this. The US had several formalities associated with copyright, such as registration requirements in order to sue, that were incompatible with Berne. To satisfy Berne, these were dropped for foreign works. They were NOT dropped for domestic works. Bizarrely, that means that it is easier for a foreign copyright owner to sue a US infringer in US court than it is for a US copyright holder to sue a US infringer in US court.

Wow, I didn't realize that they actually took some stuff that was in the public domain and put it back under copyright. Very very interesting.

by tibbon 15y ago

Wow, I didn't realize that they actually took some stuff that was in the public domain and put it back under copyright. Very very interesting.

adestefan 15y ago

Note that the retroactive copyright only applies to foreign works. The Berne Convention requires a country to apply the same copyright protections to foreign works as the country of origin. It began as an effort to standardize copyright terms throughout Europe in the late 19th century. The US didn't become a participant until 1989 which is why the retroactive law was passed.

TheAmazingIdiot 15y ago
US Constitution Article 1, Section 9, Paragraph 3 "No Bill of Attainder or ex post facto Law shall be passed." Will a legal scholar or similarly minded person please explain why this isn't an ex post facto (after the fact) law?
- deleted 15y ago
  [deleted]
- adestefan 15y ago
  You're looking for Calder v Bull where the Supreme Court decided that ex post facto only applies to criminal law and not civil law. It makes a distinction between a law that changes punishment and law for criminal proceedings or a law that is merely retroactive.
  - TheAmazingIdiot 15y ago
    If I'm reading correctly from Wikipedia, that decision was somewhat ambiguous. It either indicated that the State legislature had the right to order a re-review of a will, overturning a previous judgement. SCOTUS seemed to me more concerned about rights of a state legislature. Also, the Constitution does make the distinction between civil and criminal. It says "Make no law", which is in the similar wording that the Bill of Rights, Amendment 1 states.
- a-priori 15y ago
  I'm no legal scholar, but I think I see the distinction. By ex post facto, the US Constitution refers to a law that allows prosecution of offenses that occurred before the law was passed. That allows for all sorts of horrible abuses of power. I think it's safe to assume that there's a grandfather clause in the US law to comply with the Berne Convention, in order to allow uses of works under copyright that were in public domain at the time. If that's the case, then it wouldn't be considered ex post facto according to the US Constitution. Going forward, however, the work is copyrighted and can't be used without the permission of the author.
tzs 15y ago
It should be noted that Berne doesn't actually require that foreign works receive the same protection as domestic works. Essentially Berne says foreign works have to receive a certain set of explicit protections, and that if your copyright law provides additional protections to domestic works it has to also provide those to foreign works. It is acceptable under Berne to provide domestic works with LESS protection than is provided for foreign works. The US does this. The US had several formalities associated with copyright, such as registration requirements in order to sue, that were incompatible with Berne. To satisfy Berne, these were dropped for foreign works. They were NOT dropped for domestic works. Bizarrely, that means that it is easier for a foreign copyright owner to sue a US infringer in US court than it is for a US copyright holder to sue a US infringer in US court.