We’ve blogged about intellectual property translation, legal online translation and language translations in the context of probative value of foreign language Web site evidence. In the case Elsevier B.V. v. United Healthgroup Inc., S.D.N.Y. Jan. 14 2010, the plaintiff claimed that the provision of the Copyright Act requiring copyrights to be registered prior to infringement violated the Berne Convention and thus were preempted by the US Constitution.
The issue revolves around the fact that many foreign publishers do not register their copyrights in the US – thus when an infringement occurs they are not protected under the Act’s provisions allowing for statutory damages and attorney fees. According to the Court, the Berne Convention was not self-executing, meaning that in order for it to be binding Congress had to first adopt enabling legislation. Under this reasoning, Article 5 of the Copyright Act could not serve as the basis for a preemption.
Of course the main thing to take away from this ruling is that owners of a foreign copyright publishing materials in the United States should apply for a US copyright. However, the situation is not this simple. The easiest way to secure a US copyright on a foreign copyright is to file the original copyright with the US authorities. To do this, a foreign language translation of the copyright is required.