an effective bilateral arrangement with the United States. At least two of these countries - Egypt and Thailand harbor serious piracy problems. While our adherence to Berne will not necessarily induce them to abandon their lucrative piracy businesses to comply with the treaty, the United States would at least have a firm legal position for its claims of infringement. In broader perspective, the United States must join Berne so that it can participate fully in the international copyright community in its efforts to expand and enhance the protection which the international conventions promise. Multilateral fora, such as that provided by the Berne Convention, are, in the words of the Copyright Office, "at a minimum, an opportunity for all countries to explore in a systematic, scholarly and consultative way the on-going problems of modernizing copyright."* Without adherence to Berne, our voice is not heard, and indeed may not even be raised. D. Trade Issues and International Copyright Within the last decade, the United States has commenced efforts to link international protection of intellectual Copyright Office Statement, cited at n.** on p. 14 supra, at 182. In furthering those property to issues of trade.* For example, the Administration is increasing its efforts to protect intellectual property rights here and abroad through the use of tradebased instruments and procedures.** efforts, adherence to Berne would enable the United States to be more persuasive in its direct bilateral negotiations with problem countries and in negotiating for appropriate inclusion of intellectual property issues in the next round of Multilateral Trade Negotiations in the GATT,*** an objective which the Administration has enthusiastically endorsed. **** The GATT can provide a vital mechanism to enforce intellectual property agreements which are brazenly disregarded by international pirates. Berne and the UCC provide guidelines for the protection of copyrighted works, *See, e.g., Annual Report of the President of the United States on the Trade Agreements Program 1984-85, at 54, 61, 92 and 143 (28th Issue, February 1986). ** Administration Statement on International Trade Policy, September 23, 1985, id. at 115. *** General Agreement on Tariffs and Trade. The GATT is both a multilateral instrument and a forum for negotiations and consultations. **** "Administration Statement on the Protection of U.S. Intellectual Property Rights Abroad," at 4 (April 3, 1986). and WIPO provides a source of technical expertise and guidance; but there is no enforcing body or enforcement mechanism in either the Conventions or in WIPO. Berne, for example, entrusts enforcement to the laws of the country where infringement is claimed. "Member countries are free to decide on procedure e.g., to entrust it to the courts or to customs officers, and to lay down who may demand it."* The GATT, however, contains a binding disputesettlement mechanism which can supplement the advantages of Berne adherence.** Moreover, the GATT membership consists of 90 countries which could, at least theoretically, be called to task for committing or condoning copyright infringement. Significantly, key piracy centers such as Singapore, Korea * Masouye/Wallace, Guide to the Berne Convention, World intellectual Property Organization ("WIPO Guide") at 97 (1978). Article 33 (1) of Berne permits members to bring "disputes ... concerning the interpretation or application of this Convention" before the International Court of Justice, but a decision of that court carries no condemnation, and this provision of Berne has apparently not been used by any member country. WIPO Guide at 137-138. ** Articles XXII and XXIII, General Agreement on Tariffs and Trade. Inclusion of intellectual property issues within the GATT could also provide other advantages, such as greater political leverage for trade officials and the use of linkages to other trade and investment issues. See J. Gorlin, "A Trade-Based Approach for the International Copyright Protection for Computer Software," at 27 (1985). and Malaysia, which do not belong to either international copyright treaty, are members of the GATT. Other major piracy centers such as Egypt and Brazil, which disregard the copyright protections they agreed to uphold when they acceded to one or both of the treaties, belong to the GATT. The development of an intellectual property code within the GATT would be facilitated as to copyright by the acceptance of the Berne minima as international copyright standards enforceable by the GATT. Such a code would not represent a major new undertaking for GATT, because it is already considering an anti-counterfeiting code. An intellectual property code, then, would represent an extension of GATT's present interest in trademarks into the intellectual property area generally. As concerns our domestic law, we commend the Congress for having demonstrated its sensitivity to the importance of intellectual property by linking it to international trade considerations in legislation such as the Caribbean Basin Initiative (Caribbean Basin Economic Recovery Act, P.L. 98-67, Title II, effective June 30, 1983) and the Trade and Tariff Act of 1984 (P.L. 98-573, $$251, 303-305, 501-505) renewing the Generalized System of Preferences, and extending the definition of "unreasonable" or "unjustifiable" trading practices in Section 301 of the Trade Act of 1974 to include the inadequate protection of intellectual property. Future multilateral and bilateral trade initiatives of the United States should take advantage of the powerful inducement which United States trade benefits can provide to negotiate a higher level of enforceable copyright protec tion. V. Conclusion Effective trade in the international intellectual property community requires implementing and enforcing a full panoply of rights and obligations. The United States can become a full-fledged partner in that effort only by doing its part to develop a more dependable world order to protect copyright. We must attempt to overcome the resistance of those countries which believe, however wrongly, that effective copyright protection is not in their national interest. That effort must include persuasion, protocol, and pressure. It must include the presentation of United States views and interests within the Berne Convention; and we can present those views and interests effectively only by adhering to Berne. |