In Part I of our Dealing with Cuba series, we discussed whether filmmaker Miguel would be able to obtain a copyright license from his Cuban friend in order to produce his movie. How would a U.S. citizen’s ability to contract with a Cuban national change in the wake of President Obama’s recent announcement that the United States would resume relations with Cuba? Our answer required analyzing whether granting Miguel a copyright license to produce a derivative work would be considered a transaction, and whether a transaction, previously illegal under the Cuban Trade Embargo, would now be allowed under Obama’s new regulations.
We determined that under the embargo, a license agreement between Miguel and his friend would most likely be considered a transaction, since the agreement would be created to ensure that there is no copyright infringement or infringement lawsuit. And since transactions between Cubans and U.S. nationals are prohibited, the copyright can’t be licensed.
But Miguel may have some recourse just yet, under Obama’s new regulations easing trade and travel restrictions. Miguel would likely be permitted to visit his friend in Cuba to discuss the copyright license to produce his derivative work under the new categories for legal travel to Cuba. Additionally, if Miguel can claim that the copyright license could “greatly enhance the free flow of ideas between Cuba and the United States,” then the transaction would likely be permitted.
So let’s assume that Miguel was able to travel to Cuba, and he was granted permission from his friend to produce his derivative work and make his big Hollywood movie. Since Cuba is a member of the Berne Convention for the Protection of Literary and Artistic Works, any creator from a country that is a signatory of the international treaty governing copyrights is protected by his country’s copyright laws, whether the copyright is being used in his country or abroad. Thus, any agreement between Miguel and his Cuban friend would be governed by Cuban copyright law. What Cuban laws would govern Miguel’s copyright? Does the Cuban government exert any ownership over the intellectual property of its citizens? What are the risks involved with importing the copyright, both for Miguel and the U.S. government?
Cuban copyright law
Similar to U.S. copyright laws, Cuba has certain regulations in place in order to protect the intellectual property of its citizens. But Cuba being Cuba, those protections aren’t as far reaching as to allow Cuban nationals to have complete and total ownership of their copyrights.
Cuban copyright laws are governed by the Cuban copyright law, la Ley del Derecho de Autor, created in 1977 as Article 14 of the Cuban Constitution. Similar to U.S. copyright laws, a copyright in Cuba is owned by the author even after his or her death. Cuban copyright authors own their copyright for 50 years after their death (compare to the U.S. mandate of 70 years). If it’s a collaborative work, the copyright is owned for 50 years after the last author dies. Similarly, Cuba recognizes the importance of disseminating Cuban works across the world and respects the rights of authors to receive enumerations or benefits from their works – to a certain extent, anyway. The Cuban copyright law specifically mandates that any of the protections afforded in this statute cannot circumvent the overarching principles of the Cuban revolution. It’s pretty easy to imagine which of those “principles” the Cuban government is trying to protect here.
Under Article 3, Cuban copyright owners are given the right to:
- Attach their name to their work
- Defend the integrity of their work
- Oppose the destruction or alteration of the work without author’s consent
- Seek to authorize the publication or reproduction of the work for distribution
- Authorize the translation, adaptation, or other transformation of the work
- Receive enumerations on the work within the limits of the law
In Miguel’s situation, Miguel can receive authorization from his friend to adapt or transform the work under Article 3. Miguel’s friend is also entitled to receive compensation or some kind of benefit for his work, particularly if its disseminated or reproduced. In order to do so, however, he must enter into a contract with his friend, and the enumerations that Miguel’s friend can receive as a fruit of that contract must be approved by the Cuban government.
Contracts for Use of Copyright in Cuba
In order to obtain permission to use a copyright, Miguel must enter into a contract with his friend under Articles 28 and 29 of the Cuban copyright law. Article 28 states that different types of uses of the original work trigger different types of contracts – for example, if an editor is going to edit and distribute the original copyright, he would be governed by a contract for editing, as defined in Article 31 of the law. In our situation, Miguel would like to use his friend’s copyright in order to produce a film, which would place their agreement under the wing of Article 34.
Article 34 states that the work may be used for adaptation within the film so long as the manner in which it’s used has been agreed upon by both parties. This means that Miguel may not fundamentally alter the work without express consent by his friend. Article 34 also states that Miguel is entitled to enumerations based on the use of the work.
Unfortunately, Miguel’s friend’s rights for enumeration aren’t particularly liberal: Miguel cannot simply agree upon a figure with his friend, but rather his fee must be approved by the Cuban government. Article 5 of the Cuban copyright law states that the Cuban Ministry of Culture establishes the rates and tariffs Cuban artists may be paid for their works. In other words, any contract that Miguel and his friend enter into must be reviewed and approved by the Cuban government, since the government controls the earnings of its citizens.
This can even become problematic when an author is living abroad. Though Article 6 of the Cuban copyright law states that works created by Cuban authors living abroad are governed by the laws of the state in which they’re created, the Cuban government reserves their right to limit the enumerations the artist is able to receive if the government determines that the author’s fee circumvents Cuba’s social, artistic, scientific, or economic development. As impossible as that seems to enforce, it is a considerable risk for the Cuban author.
All things considered, it appears that Miguel’s friend has the power to authorize a license for the copyright, and under the Cuban copyright laws he’s entitled to benefit at least nominally from that contract. But this is Castro’s Cuba, and Castro says, “Not so fast.”
Thus far, we have determined that Miguel’s friend is permitted to grant Miguel authorization to adapt his work for cinema, and that he must enter into a contract with Miguel, under which he may delineate how his work may be used and what compensation he will receive for his intellectual property. But how is this arrangement affected considering that Miguel is a U.S. citizen? Does a Cuban national have unilateral authority to grant a license for copyright, when the licensee is a foreign citizen?
As we discussed in Part I of our series, Miguel and his friend would not be able to enter into a contract for the use of the copyright under the existing trade embargo between the U.S. and Cuba. But they may be able to contract under Obama’s new regulations, if Miguel and his friend are able to prove that importing the copyrighted work into the U.S. “greatly enhance the free flow of ideas between Cuba and the United States.”
Unfortunately, Cuba has laws in place that restrict the free usage of copyrights in other states. Under Article 42 of the Cuban copyright law, a Cuban author may only grant the transfer or use of his work abroad through special permission by the Cuban government. Once again, Miguel and his friend would need to have their contract for the use of the copyright approved before they can move forward, and the Cuban government would have the unilateral right to refuse that the work be used within the United States.
And since Cuba is a subscribing nation to the Berne Convention, that means that the U.S. will need to apply Cuba’s copyright laws to the contract between Miguel and his friend. This effectively means that unless the Cuban government approves the use of the copyright abroad, Miguel will not be able to adapt the work for U.S. cinema.
So, while on the surface it seems like the U.S. and Cuba are about to make great strides in their strained relationship, our copyright scenario proves they’ve got a long way to go.