The praetorians were bodyguards for the Roman emperors. As noted by wikipedia: "With the right amount of money, or at will, they assassinated emperors, bullied their own prefects, or turned on the people of Rome. In 41 Caligula was killed by conspirators from the senatorial class and from the Guard. The Praetorians placed Claudius on the throne, daring the Senate to oppose their decision." (See this wikipedia link). What does this have to do with copyright, and particular Section 104, which concerns national eligibility? In response to an earlier posting on Section 104A and GATT restoration, I have had a back-and-forth with a European commentator about Berne and the rule of the shorter term. I had noted that the United States does not apply the rule of the shorter term found in Berne and since Berne is not self-executing in the U.S., U.S. courts are to apply title 17 to U.S. and foreign citizens alike for term purposes. (Section 104A(h)(6)(B) denies restoration if the work is in the pubic domain in the country of origin throgh expiration of term). Here was the reply:
All around the world, Berne convention is not self-executing in national legislation, and national legislatures specify national terms of protection, just like in the US. But the syllogism is not applied: unless otherwise specified, the rule of the shorter term (Berne convention, art. 7-8) is used as a jurisprudential interpretation for material first published abroad: when the term of protection has expired in the country of origin, it is not protected by national law, unless otherwise specified (This is interpreted as the national intention, since interpreting it the other way around would make the shorter term clause useless).
There is indeed 17 U.S.C. 104-c that may be interpreted as a specific rule on content and duration, but on the other hand, it can also be interpreted as simply being the US transposition of Berne convention art. 5-2: given the provision made by the rule of the shorter term, its effect on the protection term is ambiguous. I cannot understand why the worldwide jurisprudential interpretation should be different in the U.S.: is it a pretorian interpretation, a general principle, or a specific law?
I don't know what a praetorian interpretation is, but perhaps it is being suggested that the U.S. rules on term represent a rogue element, a violent attack on the corpus of international copyright jurisprudence. Given our current Administration it is easy to appreciate why Europeans might be led to think this is another example of "You're either with us or you're against us," but the facts are quite different.
To begin with, Section 104 was drafted before we joined Berne and thus cannot be said to represent an attempt to be different from any international consensus on the rule of the shorter term. Section 104 is, moreover, consistent with the way the U.S. Congress has always dealt with term: we have always applied the same term of protection for all works and all authors: its a one-size fits all approach. (Sound recordings representing the most prominent example of U.S. law being more generous than foreign law). This of course doesn't excuse Congress from addressing the rule of the shorter term in its Berne implementing legislation. Article 7(8) states: "In any case, the term shall be governed by the legislation of the country where protection is claimed; however, unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work." As I interpret this, Article 7(8) doesn't require any country to apply the rule of the shorter term; countries are free to apply the domestic term to works of foreign origin (so long as it is at least life plus 50). That's what the U.S. has done. Section 104 assimilates foreign citizens, and, in Section 302 and 303 grants them the same term as U.S. authors. I don't see how this makes Article 7(8) "useless," since that provision gives countries a choice. If Article 7(8) mandated application of rule of the shorter term, then I could see criticism of the U.S. for failing to comply with a treaty obligation, but that's not the case, and Artilce 7(8) wod read differntly too, something like: "In all cases, the term shall not exceed the term fixed in the country of origin of the work." And, it should not be overlooked that in every case where the rule of the shorter term could be applied, because it isn't, the U.S. approach results in foreign works being granted a longer term than they get in their country of origin.
As for the question of courts interpreting national intention by applying the rule of the shorter term, this is where non-Berne self-execution comes into play. In the United States, national intention is usually grounded in a statute. Since U.S. courts have been epxressly told by the U.S. Congress not to apply Berne, but to apply title 17, that's what they do, and a plain reading of title 17 leads to granting foreign and U.S. works the same term. It is purely a question of statutory interpretation: no U.S. court, reading the plain words of Section 104 would think that it embodies the rule of the shorter term; contrary to the European commentator, there is no way to read Section 104 and think it carves out any special rules on duration for foreign works; that foreign courts may do so must come from a different interpretative tradition, that of reading a treaty into domestic law. (I would add that reading a treaty into domestic law and making the treaty self-executing is a very fine line). U.S. courts were, however, told in the Berne implementing legislation not to do that. In short, my answer is that the U.S. approach is consistent with international law, namely the choice given countries in Article 7(8) to legislate on the issue in domestic law. That other countries, either directly, or through court interpretations, have chosen differently, does not make us praetorians.
It is worth pointing out that in the one instance in which a court could write on a blank slate -- the New York Court of Appeals Capitol Records v. Naxos case -- in deciding, whether under state law, pre-1972 sound recordings would have the rule of the shorter term applied , the court held it would not apply the rule of the shorter term. So for us, Rubicon is a wine, not a river.