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participate. To the extent that participation in the NII can be linked to the provision of intellectual property protection, it will promote the ability of U.S. businesses to use the NII and the GII to disseminate works to foreign consumers via other countries' information infrastructures. If commercial enterprises are to make full use of the capabilities of the NII to communicate and deliver information and entertainment products, there must be assurances that their intellectual property rights will be protected effectively under strong copyright laws in all countries participating in a GII.
In considering linkages, careful consideration will have to be given to obligations under international intellectual property treaties and other international agreements, such as the North American Free Trade Agreement (NAFTA) and the World Trade Organization (WTO) Agreement on the Trade-Related Aspects of Intellectual Property (TRIPs Agreement), especially in view of the various intellectual property and market access provisions in those agreements.
b. INTERNATIONAL FRAMEWORK
In the 1970's, then-U.S. Register of Copyrights Barbara Ringer observed that if Justice Story considered copyright to be the metaphysics of the law, then international copyright is its cosmology. That message is brought home to us in 1995 by the need to evaluate the applicability of copyright in the context of the complexities of international commerce in information and entertainment products via advanced information infrastructures.
First, one must understand that there is no such thing as an international copyright, but rather, there is an international system that sets norms for protection to be implemented in national laws. Several international treaties link together the major trading nations and establish both minimum standards for protecting, under their own laws, each others' copyrighted works and the basis upon
which protection is to be extended (e.g., national treatment).
The situation is further complicated because there are two major legal traditions applicable to the protection of what the United States regards as copyrighted works. To understand the complexities of the international copyright law system and the international treaties, it is necessary to have a basic appreciation of these two major legal regimes.
The United States and other countries that follow the Anglo-American or common law legal tradition have "copyright" systems in which the principal focus is on promoting the creation of new works for the public benefit by protecting the author's economic rights. This is seen as part of the basic "social contract" between the State and its citizens. This theory is reflected in the patent and copyright clause in Article 1, Section 8, clause 8 of the U.S. Constitution. The thesis is that providing such protection will induce the creation of more works which will "promote the progress
of science" and redound to the public benefit. History has validated this principle which benefits the public as well as creators of copyrighted works.
Countries that follow the civil law tradition, however, regard authors' rights as natural human rights, or part of one's right of personality. As a part of this tradition, in addition to the protection of the author's economic rights, the protection of the author's "moral rights" is an essential part of the system. Moral rights, as reflected in Article
See generally S. STEWART, INTERNATIONAL COPYRIGHT AND NEIGHBOURING RIGHTS (2d ed. 1989) (hereinafter STEWART). Stewart presents a summary of international copyright principles and synopses of the copyright laws of a number of countries. Stewart also identifies socialist copyright laws as a category. However, since the demise of the USSR, many of the former socialist countries have moved to enact modern copyright legislation. The copyright laws of the People's Republic of China and Russia follow the civil law model.
STEWART at 6. In some common law countries, moral rights are protected by a combination of statutory provisions and common law. In the United States, for instance, this protection is found in Federal legislation, such as the Lanham Act and the Copyright Act, various state legislative provisions
6bis of the Berne Convention, include the right of an author to be named as the author of a work and the right to object to uses of the work which could bring dishonor or discredit on the author's reputation. Often, in civil law systems, moral rights reflect a part of the author's personality and are non-transferable, and may be not waivable. Economic rights, in some instances, may be subordinated to moral rights. Under these systems, only works which are original, in that they reflect the personality of the author, are entitled to authors' rights protection. Productions that do not meet this originality requirement, but still merit some protection, are protected under a system of "neighboring rights."
Needless to say, with such divergent theoretical bases, the copyright and the authors' rights systems are sometimes in conflict. One of these areas of conflict is in the nature and level of rights for owners of neighboring rights.
Neighboring rights are similar to the rights protected by copyright or authors' rights and are applied to protect the rights of producers of phonograms, performers and broadcasters. Under the copyright system, many of the rights covered under neighboring rights are protected as copyright rights. For example, under the U.S. copyright law, sound recording producers and performers are regarded as joint authors of sound recordings. Under droit d'auteur (or authors' rights) systems, such producers' and performers' rights would be protected as neighboring rights. Neighboring rights, while similar in economic character to authors' rights, may be protected at a lower level than authors' rights and are entirely separate and distinct from the higher-level rights granted to authors.
and the common law of privacy, defamation and the like. See Final Report of the Ad Hoc Working Group on U.S. Adherence to the Berne Convention, 10 COLUM. VLA J.L. & ARTS 513, 548-57 (1986); 2 NIMMER ON COPYRIGHT S 8D.02[A] at 8D-10 to -11 (1994).
c. INTERNATIONAL TREATIES AND
THE WORLD INTELLECTUAL PROPERTY
WIPO is responsible for the administration of, and activities concerning revisions to, the international intellectual property treaties.429 The principal WIPO copyright and neighboring rights conventions include the Berne Convention for the Protection of Literary and Artistic Works (Paris 1971) (Berne Convention), 430 the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome Convention), 431 and the Geneva Convention for the Protection of Producers of Phonograms Against the Unauthorized Reproduction of their Phonograms (Geneva Phonograms Convention). 432 UNESCO 433 and WIPO
There are 155 members of the Convention Establishing the World Intellectual Property Organization (WIPO) as of July 1, 1995. Done at Stockholm on July 14, 1967; entered into force for the United States on August 25, 1970. 21 UST 1749; TIAS 6932; 828 UNTS 3. WIPO also administers the Paris Convention for the Protection of Industrial Property (Stockholm 1967), which is not discussed in this Report. 430
Berne Convention (with Appendix) for the Protection of Literary and Artistic Works of September 9, 1886, completed at Paris on May 4, 1896, revised at Berlin on November 13, 1908, completed at Berne on March 20, 1914, revised at Rome on June 2, 1928, at Brussels on June 26, 1948, at Stockholm on July 14, 1967, and at Paris on July 24, 1971, amended at Paris on July 24, 1979. Done at Paris on July 24, 1971; entered into force for the United States on March 1, 1989. 431
There were 48 members of the convention as of July 1, 1995, but the United States is not a member. The Rome Convention is jointly administered by WIPO, the International Labor Organization (ILO) and the United Nations Educational, Scientific and Cultural Organization (UNESCO). 432
Done at Geneva on October 29, 1971; entered into force on April 18, 1973; for the United States on March 10, 1974. 25 UST 309; TIAS 7808; 888 UNTS 67. There were 53 members of the Convention as of July 1, 1995. 433
UNESCO is the United Nations Educational, Scientific and Cultural Organization.
jointly administer the Universal Copyright Convention (Paris 1971),434 which is a lower-level copyright convention that was negotiated in the years following World War II largely to bring the United States into the world of international copyright. Virtually all of the members of the Universal Copyright Convention are also members of the Berne Convention, and by the terms of the conventions the Berne Convention governs relations between members of both.
The Berne Convention is the principal international copyright convention and includes the most detailed provisions. In 1989, the United States joined the Berne Convention, which is the largest copyright convention. While it is generally regarded as providing adequate international standards of protection, some believe that it should be updated to account for advances in electronic communications and information processing technology. Its members come from the world's major legal traditions -the Anglo-American common law copyright system and the European civil law droit d'auteur system. However, despite its level of detail, as previously noted, and in part because it must accommodate differing legal traditions, in some areas its standards may be insufficient to deal with the world of digital dissemination of copyrighted works.
The principal treaty for the protection of neighboring rights, the Rome Convention, was adopted in 1961, and is considered by many to include standards that are inadequate for dealing with the problems raised by current technological advances and the level of trade in the products and subject matter affected by its operation. It provides for the protection of producers of phonograms against
Universal Copyright Convention, as revised, with two protocols annexed thereto. Done at Paris on July 24, 1971, entered into force on July 10, 1974. 25 UST 1341; TIAS 7868. As of May 31, 1995, there were 96 members of the Convention.
As of July 1, 1995, there were 114 signatories to the Berne Convention.