« iepriekšējāTurpināt »
grant to nationals of countries of the Berne Union national treatment in respect of the rights specifically covered by the Convention. This point is not disputed.440 However, with respect to any new rights which may be hereafter granted, some have taken the position that the national treatment obligation applies only to the minimum rights in the Convention. 1
THE ROME CONVENTION
The fundamental problem with the Rome Convention is that, while it generally imposes a national treatment obligation, it permits a number of reservations and exceptions that allow a Member to avoid that obligation for important rights otherwise provided for in the Convention. Article 3.1 of the TRIPs Agreement provides that "[i]n respect of performers, producers of phonograms and broadcasting organizations, this obligation (national treatment] only applies in respect of the rights provided under this Agreement. "442 It also provides that a Member may avail itself of the "possibilities provided in .. paragraph 1(b) of Article 16 of the Rome Convention .. relating to reciprocity for the broadcasting right in respect of phonograms.
building or other structure located in a country of the Union, the
See World Intellectual Property Organization, BCP/CE/III/3, Report of the Committee of Experts on a Possible Protocol to the Berne Convention, Third Session, June 21 to 25, 1993, 20-21 (June 25, 1993).
See Trade-Related Aspects of Intellectual Property, Final Act Embodying the Results of the Uruguay Round of the Multilateral Trade Negotiations, Office of the U.S. Trade Representative (Dec. 15, 1993).
THE TRIPS AGREEMENT
Additionally, the TRIPs Agreement includes a national treatment obligation.** In respect of copyright the TRIPs national treatment provision incorporates the standards of the Berne Convention, but in respect of neighboring rights, it allows members to impose the exceptions to national treatment permitted by the Rome Convention.
1. Each Member shall accord to the nationals of other Members
Article 4 of TRIPs (Most-Favoured-Nation Treatment) provides:
(a) deriving from international agreements on judicial
(b) granted in accordance with the provisions of the Berne
Permitting such exceptions can lead to problems in the implementation of a GII.
The NAFTA includes a very broad national treatment provision that does not include the possibility of making the broad exceptions provided for under the TŘIPs agreement.
f. PRIVATE COPYING ROYALTY SYSTEMS
The manner in which portions of the audio and video private copying royalties collected in some European countries are distributed to claimants may prove to be an impediment to future development of the ĜII if a similar approach is adopted in respect of digital information dissemination systems. To illustrate, France's Law of July 3, 1985 (1985 Law) establishes a system of neighboring rights protection
protection for performers, audiovisual communication enterprises, producers of phonograms and producers of videograms. The 1985 Law, inter alia, grants specified categories of right holders an entitlement to equitable remuneration in respect of the private copying of their works. Some of the 1985 law's provisions are based on reciprocity and thus discriminate against, for example, foreign motion picture interests. Consequently, those provisions may be inconsistent with France's obligations under the Berne Convention and the Universal Copyright Convention, at least to the extent that they apply to Berne or UCC protected subject matter and rights. If this pattern is followed in implementing future legislation, serious impediments to the development of the GII may arise. .
Convention (1971) or the Rome Convention authorizing that the
(c) in respect of the rights of performers, producers of
(d) deriving from international agreements related to the protection of intellectual property which entered into force prior to the entry into force of the WTO Agreement, provided that such agreements are notified to the Council for TRIPs and do not constitute an arbitrary or unjustifiable discrimination against
nationals of other Members. 446
See NAFTA, H.R. Doc. No. 159, 103d Cong., 1st Sess. (1993); 32 I.L.M. 289-456, 605-799 (1993). The NAFTA is binding among the United States, Mexico and Canada.
g. MORAL RIGHTS The author's moral rights are provided for under Article 6bis of the Berne Convention which requires recognition of the right of an author to be named as the author of a work (the right of paternity) and the right for an author to object to uses of a work which would bring dishonor or discredit on his or her reputation (the right of integrity). *47 The controversy over moral rights was one of the reasons that kept the United States out of the Berne Convention for over a century. However, during that time our legal regime evolved and when the United States finally joined Berne, the Congress determined that no changes to
Article 6bis provides:
U.S. law were necessary to comply with the moral rights provisions of Article 6bis. Congress found that the existing panoply of remedies available under U.S. common law, various state statutes and Federal laws provided sufficient moral rights protection. These findings were explicitly stated in the Berne Convention Implementing Act. When the Congress was convinced that enhanced protection for moral rights was necessary, legislation was passed.449
For the United States, the question is what should be the
scope of moral rights under our law. What is the appropriate role for Federal and state legislation? There are even serious Constitutional questions about the possible scope of moral rights legislation that could be part of our Federal copyright law. Such rights would have to be seen as promoting the progress of science and useful arts. They would have to be viewed as part of the Constitutional quid pro quo of providing protection in order to promote creativity. Some have argued that such a justification may prove difficult to make. Even among Berne members, the nature and scope
of moral rights varies considerably from country to country, but regardless of their scope and extent, moral rights are typically not transferable and sometimes, may not be waived." The fact that these rights are non-waivable may create difficulties for the commercialization of works in the GII environment. A current report of the multimedia study committee of the Japanese Institute for Intellectual Property suggests that there may be a need either to permit
See Act of October 31, 1988, Pub. L. 100-568, 1988 U.S.C.C.A.N. (102 Stat.) 2853.
See Visual Artists Rights Act of 1990, Pub. L. 101-650, 1990 U.S.C.C.A.N. (104 Stat.) 5128.