Lapas attēli
PDF
ePub

45. The other possible option would be to follow the solution of the memorandum discussed by the second session of the Committee of Experts, that is, in addition to the explicit recognition of the right of importation, to provide only for those specific rights that survive the first sale of copies.

46. Whichever of the two solutions is applied, the most substantive question is the scope of those elements of the right of distribution which survive the first sale (or other first transfer of ownership) of a copy. It is obvious that the right to resell the copy (except for the case of the droit de suite) should not survive. It is clear now that there would be no support for any provision on traditional public lending rights (granted in case of "public lending" of books and similar printed publications). It is difficult to gauge the general feeling about the need for the survival of a possible general right of lending in cases not covered by the above-mentioned traditional public lending rights. Taking into account the recent developments at the national level and the results of the discussions at the second session of the Committee of Experts, it seems that it is only the recognition of a rental right surviving the first sale which may receive fairly general support.

47. For the sake of sufficiently uniform regulation of the most basic rights in respect of the various categories of works, and because, if rental really becomes an important means of exploitation of a category of or, the considerations in favor of the recognition of a right of rental hardly differ significantly among categories of works, the recognition of a general right of rental would be desirable. The outcome of the discussions at the second session of the Committee of Experts indicates, however, that such a proposal would not receive sufficient support. What may receive such support is the recognition of the right of rental in respect of certain categories of works. The categories of works to which the right of rental (surviving the first sale of copies) might be accepted are the following: musical works in the form of graphic notation, audiovisual works, works the performances of which are embodied in sound recordings (and, of course, in the neighboring rights content, also sound recordings themselves), computer programs, as well as any other kinds of works (including collections of works and/or of data (such as data bases)) stored in electronic (including digital) format. In these cases, public lending may, and in general does, have the same effect as rental on the possibility of normal exploitation of the works concerned. Therefore, in addition to the recognition of the right of rental surviving first sale, it seems justified to consider, as a possible alternative, the recognition of a right of lending, too, in a similar manner.

48. In order to fulfill their functions, the bundle of rights forming copyright should normally be exclusive rights of authorization. The restriction of exclusive rights to a mere right to remuneration should only be allowed in exceptional cases where there are specific reasons for such restriction. In the case of the right of rental, in general, there seem to be no such reasons. Where some exception might still be considered is where there are already existing systems in a country which are not easy to change and, thus, some transitional solution is inevitable to make possible the accession to the protocol of the countries concerned. If the alternative to also recognize a public lending right in respect of the same categories of works were adopted, specific exceptions might be justified to the exclusive nature and even to the very obligatory application of such a right. It seems that the same conditions may be set here as the ones provided for in Article 9(2) of the Berne Convention. 49. It is proposed that the protocol;

(a) should state that, under the present text of the Berne Convention, it is obligatory to protect the exclusive rights of the author or other owner of copyright to authorize first distribution and the importation (for distribution) of copies of works, as these rights, although not mentioned in the Convention, are inseparable corollaries to the right of reproduction expressly mentioned in the Convention; and

(b) should provide the following:

(i) the author of, or other owner of copyright in, a work has the exclusive right to authorize the distribution of the original or copies of the work, through sale or other transfer of ownership, or through rental, public lend ing or other transfer of possession;

(ii) subject to Article 14ter of the Berne Convention (droit de suite), any national legislation may provide that the right mentioned in item (i) is not applicable in respect of the original or a copy of the work which has been sold, or the ownership of which has been otherwise transferred, by or pursuant to an (implicit or explicit) authorization of the author or other owner of copyright;

(iii) the faculty provided for national legislation under item (ii) does not apply in case of rental [or public lending] of the original or copies of: musical works in the form of graphic notation, audiovisual works, works the per

formances of which are recorded in phonograms (sound recordings), computer programs, and any other kinds of works stored in electronic (including digital) format;

[(iv) notwithstanding item (iii), any country that, on the date of the adoption of the protocol, has in force provisions under which only a right to remuneration exists for rental of copies of works the performances of which are recorded in phonograms, may make a reservation declaring that it will not recognize the exclusive right to authorize the rental of such copies after the copies concerned have been sold or their ownership has been otherwise transferred by or pursuant to (implicit or explicit) authorization of author or other owner of copyright, but will maintain, at least temporarily, such a right to remuneration;]

[(v) any national legislation may provide, certain specific cases for exceptions to the exclusive right of the author or other owner of copyright to authorize public lending provided for in items (i) and (iii), provided that such exceptions do not conflict with the normal exploitation of the works and do not unreasonably prejudice the legitimate interests of authors or other owners of copyright;]

(vi) the author of, or other owner of copyright in, a work has, even following the sale or other transfer of ownership of the copies of the work by or pursuant to his or its (implicit or explicit) authorization, the exclusive right to authorize the importation of copies of his work, whether or not such copies were made with his or its authorization, into the country, or where two or more countries have formed a single economic territory for purposes including the free circulation of goods, and the national legislation of the countries concerned so provides, into any of the countries concerned;

(vii) the right provided for according to item (vi) is not applicable where the importation effected by a person for his personal and non-commercial use as part of his personal luggage.

APPENDIX 2.-STATEMENT OF RALPH OMAN, REGISTER OF COPYRIGHTS AND ASSOCIATE LIBRARIAN FOR COPYRIGHT SERVICES, MAY 27, 1993

I am pleased to submit this written statement for the record of your hearing on national treatment and conflicts of law in the field of copyright.

For the past three years, the World Intellectual Property Organization (W.I.P.O.) has been holding meetings to discuss how best to update the Berne Convention for the Protection of Literary and Artistic Works. These discussions have questioned whether to seek another revision-the last one was in 1971-or to update the convention by a special instrument such as a protocol. The issues covered include explicit subject matter protection for computer programs, databases, and sound recordings, and the grant of a number of new economic rights and benefits, including rental rights, private copying, parallel importations rights, and express limits on photocopying.

In many ways the progress we will make in the W.I.P.O. will consolidate its gains we have made in the GATT/TRIPS negotiations. In GATT/TRIPS we have advanced the frontier of intellectual property protection worldwide and helped build a new consensus around the concept of strong copyright enforcement and national treatment. As the international agency with continuing responsibilities for intellectual property, the W.I.P.O. seeks to fence in that new consensus and bring it under cultivation in the Berne protocol and the New Instrument.

For the United States, the concerns center around several questions: the erosion of the principle of national treatment, coupled with the growing tendency to condition new rights and benefits on reciprocity; the reluctance of European lawmakers and administrative bodies to recognize producer's rights based on the work madefor-hire doctrine of U.S. and British law; and the growth of neighboring rights interests that siphon off effective protection from the copyright realm.

As various countries try to come to consensus on these issues, it is clear that the path to achieving a Protocol may be difficult. Key to these difficulties is an understanding of national treatment, its historical development, the current political tensions that threaten its continued existence, and its importance in achieving balanced solutions to international copyright issues.

I. THE HISTORical DevelopmENT OF NATIONAL TREATMENT

The principle of national treatment has a longstanding tradition in international copyright law. Originally created in bilateral treaties, national treatment recognizes that the citizens of one country shall enjoy all of the rights and privileges afforded by the laws of another country. Thus, where citizens of member country X find themselves aggrieved within the borders of member country Y, they may vindicate their rights in member country Y just as if they were citizens of Y. In essence, they are entitled to be treated as nationals of member country Y, even though they are foreigners. National treatment promotes comity among member countries to an agreement, and affirms each member country's recognition of common goals in the protection of individual rights.

National treatment had its first significant copyright beginnings through a number of bilateral copyright treaties executed during the nineteenth century. For example, Great Britain concluded agreements with Prussia (1846) France (1851), Belgium (1854), Sardinia (1860), and Spain (1880) that provided that a work published in one of the member states was to be protected in the other "as if the work had been first published in such other State with the same legal remedies against piracy and reproduction."1 Similarly, Germany concluded agreements with Belgium (1883), France (1883), and Italy (1884), giving authors in each country enjoyment of "the advantages which are now granted or which shall in the future be granted by the law for the protection of works of art and literature, and... the same protection and the same legal remedies against any infringement of their rights, as if the same had been committed against national authors."2

Although national treatment was applied under a few early bilateral agreements, it was not always extended without limitation. Perhaps due to lingering suspicions of foreigners among the populace, several countries adopted the position that their copyright laws would only protect foreign authors to the extent that such authors would receive protection in their own country or the country of first publication. Thus, Spain in its agreements with France and Portugal in 1880 expressly stipu

1S. Ladas, The International Protection of Literary and Artistic Property 57 (1938). ald.

lated that “authors...who prove their right...in one of the contracting States, in conformity with the legislation of such State, shall enjoy...corresponding rights in the other State and shall be permitted to enforce them in the same manner and under the same conditions as nationals."3

The doctrine of reciprocity has an even older pedigree than national treatment. The first bilateral agreements among European states in the early part of the nineteenth century were generally based on reciprocity. The theory of reciprocal agreements is that a foreign author should not be entitled to greater protection in a country with high level protection than that afforded by either his country of origin or the country of first publication. The reasons typically offered for reciprocity were fairness and equality. If authors were granted greater rights, they would be encouraged to avail themselves of the foreign legal system on a far greater and more frequent basis. Also authors of the state with the greater protection would be denied similar rights in the states with less protection due to a lack of equal or similar protection. The doctrine of reciprocity is somewhat retaliatory in nature: since country X does not have the same protection as country Y, country Y will not give better protection to country X's nationals than country X would give to country Y's nationals.

In the copyright field, reciprocity gave way to national treatment as the standard for international agreements upon creation of the Berne Convention. The authors who petitioned for an "international union of states" to protect their rights advocated national treatment as the cornerstone of that protection. National treatment has the effect of gradually elevating the standards of protection since authors in lower level protection states are armed with arguments for improved protection in their own countries. Even without this natural tendency to higher levels of protection, national treatment is usually favored by authors simply because their works are protected at the highest possible level under the laws of a given country. In short, agreements based on reciprocity tend to seek the lowest possible level as the standard of protection, whereas agreements based on national treatment tend to achieve higher levels of protection.

A. NATIONAL TREATMENT IN THE BERNE CONVENTION

1. Principles of National Treatment.

The concept of national treatment for foreign authors is one of the bedrock principles of the Berne Convention. Authors of Convention works are afforded the same protections in foreign member countries as are the nationals of those countries. In essence, the author is allowed to "step into the shoes" of a national of the country wherein he or she seeks copyright protection. While the rule of national treatment may seem both basic for international protection and easy to achieve, serious and considerable inroads have been made in the principle in recent years which may detrimentally affect authors' ability to protect their works and receive proper remuneration in foreign countries.

Article 5 (1) of the Berne Convention states the rule of national treatment:

Authors shall enjoy, in respect of works for which they are protected under this Convention, in countries of the Union other than the country of origin, the rights which their respective laws do now or may hereafter grant to their nationals, as well as the rights specially granted by this Convention.1

While the rule appears straightforward, it is not without requirements. First, only works that are "protected under this Convention" are subject to national treatment. This provision not only covers the obvious situation of excluding non-Berne works (i.e. the works of authors of non-member countries which were not first published in a Berne country), but also qualifies the rights of authors that are protected. The Preamble to the Berne Convention states that "The countries of the Union, being equally animated by the desire to protect, in as effective and uniform a manner as possible, the rights of authors in their literary and artistic works." (emphasis added). Thus, what is protected under Berne, and is entitled to national treatment, is the "rights of authors in their literary and artistic works."

Second, national treatment means that authors in one contracting country enjoy in other union countries the same "rights which their respective laws [i.e. the laws of the foreign country] do now or may thereafter grant to their nationals [i.e. the citizens of the foreign country]."5 The "respective laws” of the foreign country man

3 Id. at 58.

Berne Convention for the Protection of Literary and Artistic Works, (Paris 1971), Art. 5(1). "Id. (parentheticals added).

dates each member country to extend national treatment under the Berne Convention to any laws that protect the "rights of authors in their literary and artistic works." This means any law that affects the "rights of authors in their literary and artistic works," whether that law is described as a copyright law, tax law, or something else. The description given that law by the foreign country does not alleviate the country's obligation of national treatment under Berne. Thus, for example, a tax on photocopying machinery that compensates authors for reproduction of their works affects the "rights of authors in their literary and artistic works" and must be given national treatment."

Finally, authors are not only afforded protection of the "respective laws" of the foreign country, but also entitled to the "rights specially granted" by the Berne Convention. This refers to the "minimum standards” afforded by the Berne Convention for the protection of authors' works. "Minimum standards" are essentially a bundle of basic rights that must be afforded Berne authors. Each Berne country must afford these rights to foreign authors, although such countries are free to deny these rights to their own nationals. For example, Article 16(1) of Berne provides for the remedy of seizure of infringing works. If a U.S. national's work was infringed in France, France would be required to make seizure available to that national. However, France is free under the Convention to deny its own citizens the remedy of seizure, just as the United States could so deny its own citizens.7 The Berne_minimum standards, however, require member countries to grant foreigners those Convention rights. Thus, under Article 5(1), foreign Berne authors are entitled to national treatment in Berne states, as well as the minimum standards of the Convention. 2. Exceptions to National Treatment Permitted in the Berne Convention.

While national treatment is universal in its application to the Berne Convention, it is not without exceptions. Specifically, Berne provides certain circumstances where the concept of "reciprocity," as opposed to national treatment, may be applied. Reciprocity means that a nation will only accord a foreigner a right or rights if the country where that foreigner comes from also makes that right or rights available to its own citizens. For example, in the situation described earlier involving France's tax on photocopying equipment for the benefit of authors, France will only allow those foreign authors whose own nation also collects a similar tax (and, of course, allows French nationals to share in the proceeds) to share in the proceeds of the French tax. Reciprocity is an exception to national treatment and, as such, should be interpreted most narrowly.

The Berne Convention permits reciprocity, rather than national treatment, in four specific circumstances: (1) Article 2(7)—works of applied art, industrial designs and models. Paragraph 7 of Article 2 provides:

Subject to the provisions of Article 7(4) of this Convention, it shall be a matter for legislation in the countries of the Union to determine the extent of the application of their laws to works of applied art and industrial designs and models, as well as the conditions under which such works, designs and models shall be protected. Works protected in the country of origin solely as designs and models shall be entitled in another country of the Union only to such special protection as is granted in that country to designs and models; however, if no such special protection is granted in that country, such works shall be protected as artistic works.8

This article covers the situation where a work is protected in a foreign country both under its industrial design law and copyright law, but the country where the work was created only protects the work under its industrial design law. The foreign country can demand reciprocity and deny copyright protection, unless the country where the work was created also protects the work under its copyright laws.9 Although copyright protection may be denied, the foreign country must still afford protection of the work under its industrial design law.

(2) Article 6(1)—"back-door" protection. Paragraph 1 of Article 6 provides:

Where any country outside the Union fails to protect in an adequate manner the works of authors who are nationals of one of the countries of

Unfortunately, a country may argue as France did when it passed such a law in 1976 that such a tax did not encompass Berne rights, and therefore foreign authors would not receive national treatment with respect to entitlement of the monies collected by this tax. See Steup, The Rule of National Treatment for Foreigners and its Application to New Benefits for Authors, 25 Bull. Copr. Soc'y. 279, 280 (1978).

7As a point of fact, both countries do afford the remedy of seizure to their nationals. 8 Supra note 4, Art. 2(7).

Id.

« iepriekšējāTurpināt »