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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. 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.

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."42 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.

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building or other structure located in a country of the Union, the
country of origin shall be that country.

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).

442

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

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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.445

444 Article 3 (National Treatment) provides:

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1. Each Member shall accord to the nationals of other Members
treatment no less favourable than that it accords to its own
nationals with regard to the protection of intellectual property,
subject to the exceptions already provided in, respectively, the
Paris Convention (1967), the Berne Convention (1971), the Rome
Convention and the Treaty on Intellectual Property in Respect of
Integrated Circuits. In respect of performers, producers of
phonograms and broadcasting organizations, this obligation only
applies in respect of the rights provided under this Agreement.
Any Member availing itself of the possibilities provided in
Article 6 of the Berne Convention and paragraph 1(b) of Article
16 of the Rome Convention shall make a notification as foreseen
in those provisions to the Council for Trade-Related Aspects of
Intellectual Property Rights.

2. Members may avail themselves of the exceptions permitted
under paragraph 1 above in relation to judicial and administrative
procedures, including the designation of an address for service or
the appointment of an agent within the jurisdiction of a Member,
only where such exceptions are necessary to secure compliance
with laws and regulations which are not inconsistent with the
provisions of this Agreement and where such practices are not
applied in a manner which would constitute a disguised restriction
on trade.

Article 4 of TRIPS (Most-Favoured-Nation Treatment) provides:
With regard to the protection of intellectual property, any
advantage, favour, privilege or immunity granted by a Member to
the nationals of any other country shall be accorded immediately
and unconditionally to the nationals of all other Members.
Exempted from this obligation are any advantage, favour,
privilege or immunity accorded by a Member:

(a) deriving from international agreements on judicial
assistance and law enforcement of a general nature and not
particularly confined to the protection of intellectual property;

(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

The NAFTA includes a very broad national treatment provision that does not include the possibility of making the broad exceptions provided for under the TRIPS agreement.

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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 GII 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 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,

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Convention (1971) or the Rome Convention authorizing that the
treatment accorded be a function not of national treatment but of
the treatment accorded in another country;

(c) in respect of the rights of performers, producers of
phonograms and broadcasting organizations not provided under
this Agreement;

(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.

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.

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.

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). 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

(1) Independently of the author's economic rights, and even after
the transfer of the said rights, the author shall have the right to
claim authorship of the work and to object to any distortion,
mutilation or other modification of, or other derogatory action in
relation to, the said work, which would be prejudicial to his honor
or reputation.

(2) The rights granted to the author in accordance with the
preceding paragraph shall, after his death, be maintained, at least
until the expiry of the economic rights, and shall be exercisable by
the persons or institutions authorized by the legislation of the
country where protection is claimed. However, those countries
whose legislation, at the moment of their ratification of or
accession to this Act, does not provide for the protection after the
death of the author of all the rights set out in the preceding
paragraph may provide that some of these rights may, after his
death, cease to be maintained.

(3) The means of redress for safeguarding the rights granted by
this Article shall be governed by the legislation of the country
where protection is claimed.

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.448 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

448

See Act of October 31, 1988, Pub. L. 100-568, 1988 U.S.C.C.A.N. (102 Stat.) 2853.

449 See Visual Artists Rights Act of 1990, Pub. L. 101-650, 1990 U.S.C.C.A.N. (104 Stat.) 5128.