stand on their rights under the Berne Convention, except when expressly overridden by the TRIPS Agreement," or, perhaps, when longer terms happened to benefit economically significant local interests. As noted, the TRIPS Agreement requires a minimum tern of fifty years for most literary and artistic productions that are attributed to corporate entities.79A Subject to this proviso, the Berne Convention, together with the neighboring rights provisions of the Rome Convention and of the TRIPS Agreement, allow member countries to maintain shorter terms of protection for sound recordings, cinematographic or audiovisual works, fixations of performers' renditions, photographic works, works of applied art, anonymous or pseudonymous works, joint works, and works made for hire in general (including computer programs) than those that might be operative in either the European Union (under its Directive harmonizing the term of protection) or in the United States (if Congress enacted H.R. 989), as the case might be." Moreover, the developing countries would continue to retain both their shorter, basic term of life plus fifty years," and their rights to invoke compulsory licenses for the use of certain 79 See supra notes 11-13 and accompanying text. TRA See supra note 11B-13 and accompanying text. See TRIPS Agreement, supra note 5, arts. 9, 10, 12, 14; Berne Convention, supra note 3, arts. 2(7), 7, 7 bis; Rome Convention, supra note 16, art. 14; supra text accompanying notes 9-44 (describing effects of E.C. Directive and H.R. 989). 81 Berne Convention, supra note 3, art. 7(1); TRIPS scientific and educational works on favorable terms."2 For the foreseeable future, in short, the developing countries have no reason to diminish their own competitive prospects or to otherwise burden their trade balances by exceeding the minimum international standards under the relevant treaties. Unless third countries were prodded into entering a harmonized E.U. U.S. framework, the MFN and national treatment provisions of the TRIPS Agreement could tend progressively to render their cultural and technical products more competitive in the international market than the corresponding goods produced in territories that had succumbed to higher levels of protection. To the extent that higher levels of protection in developed countries actually triggered the disutilities that critics attribute to overly long terms of protection in general, the benefits accruing to more competitively manufactured products in developing countries would fruther increase once the learning curve and other built-in disabilities afflicting producers in these countries were overcome. This course of conduct would undoubtedly subject developing countries to new trade pressures attempting to elicit higher levels of protection. Yet, the hard truth is that much pressures will only generate countervailing demands for further trade concessions to offset the social costs of more intellectual 12 See Berne Convention, supra note 3, art. 21 and Appendix; Guide to the Berne Convention, supra note 48, at 105, property protection." Until it becomes possible to evaluate the costs and benefits of the Uruguay Round as a whole, these demands for greater market access would almost certainly exceed the technical and political capabilities of developed countries to grant then. For these and other reasons, the proposals contained in H.R. 989 cannot be justified as an exercise in harmonization. Their justification in terms of cultural policy remains to be assessed. The Logic of Cultural Policy: More Than Utility, Less Than Natural Law 2. According to Professor Ricketson, a most ardent and distinguished supporter of authors' rights in general, "one is hard-pressed to find reasoned justification for the move for longer terms of protection," which culminated internationally in the life plus fifty standard adopted at the Brussels Revision of the Berne Convention in 1948.44 The explanation lies in the "strong emphasis that has always been placed on the natural property rights of the author in his work. In this respect, ideology has replaced critical inquiry, and has led to a long period of protection. . .becoming enshrined as an absolute value that has seldom been challenged, except where there have been 83 See Reichman, Universal Minimum Standards, supra note 2, at 382-85 ("compensation as the key to future concessions"). moves for its further extension. was In practice, a life plus fifty formula derogates from both the natural property rights thesis, which argues for perpetual protection on a par with the treatment of tangible property, and from the incentive rationale for copyright protection, which posits that free competition should only be curtailed for the minimum period needed to overcome the public goods problem inherent in intellectual creations generally." Among the various justifications for this standard that have been put forward, the most generally accepted and least controversial is that an author should have the possibility of providing for himself during his own lifetime and then for his immediate dependents." Thereafter, the balance tips in favor of free access to the public domain for later authors who benefit from those who preceded them." 15 SAM RICKETSON, THE BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS: 1886-1986, at 323 (1987); see also A. STROWEL, Supra note 38, at 623-24. 86 See, e.g., Ricketson, supra note 70, at 754-56, 763-67; Collapse of the Patent-Copyright Dichotomy, supra note 4, at 48587; see also William M. Landes & Richard A. Posner, An Economic Analysis of Copyright Law, 18 J. LEGAL STUD. 325 (1989); Wendy J. Gordon, An Inquiry into the Merits of Copyright: The Challenges of Consistencey, Consent, and Encouragement Theory, 41 STAN. L. REV. 1343, 1351, 1413-63 (1989). 17 See, e.g., Ricketson, supra note 70, at 761-62 (noting that the fifty year term rests on anecdotal but not scientific evidence); see also Theodore Limperg, Duration of Copyright Protection, 103 R.I.D.A. 53, 68-69, 72-77 (1980); Zecharia Chafee, Jr., Reflections on the Law of Copyright, 45 COLUM. L. REV. 503, 507-08 (1945). See, e.g., Jessica Litman, The Public Domain, 39 EMORY L.J. 965 (1990); David Lange, Recognizing the Public Domain, 44 In other words, despite the persistent claims of lawmakers, administrators, courts, and commentators, that United States copyright law rests on the utilitarian theory of protection, that theory will no more account for all the peculiarities of developed copyright systems, ours included, than natural rights thinking and the protection-of-personality principle still prevalent in Europe: For example, incentive theory cannot explain the moral Acknowledging that copyright laws represent cultural policy does not lessen their importance as providers of incentives to Reflections on the Intellectual Commons: Two Perspectives on Copyright Duration and Reversion, 47 STAN. L. REV. 707, 717-19 (1995) (discussing tensions in 1976 Act). 19 See, e.g., 17 U.S.C. 106 (A), as amended by the Visual Artists Rights Act of 1990, Pub. L. 101-650, 104 Stat. 5128; see also W.R. CORNISH, INTELLECTUAL PROPERTY: PATENTS, COPYRIGHT, TRADE MARKS, AND ALLIED RIGHTS 309 (2nd ed. 1989). See 17 U.S.c. S$203, 304 (c) (1988). " J.H. Reichman, Goldstein on Copyright Law: A Realist's Approach to a Technological Age, 43 STAN. L. REV. 943, 947-48 (1991) (hereinafter Realist's Approach]. See also Hamiliton, |