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International Copyright: From a "Bundle" of National Copyright Laws to a Supranational Code?

International Copyright: From a "Bundle" of National Copyright Laws to a Supranational Code?

Ginsburg, Jane C., "International Copyright: From a "Bundle" of National Copyright Laws to a Supranational Code?" (January 2000). The Journal of the Copyright Society of the United States, Millenium Volume, June 2000

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Abstract

    In recent years, the number and content of substantive norms that international copyright treaties impose on member states have increased considerably. It is therefore appropriate to consider the extent to which those instruments have in effect created an international (or at least multinational) copyright code, as well as to inquire what role national copyright laws do and should have in an era not only of international copyright norms, but of international dissemination of copyrighted works. This Article first considers the displacement of national norms through the evolution of a de facto international copyright code, elaborated in multilateral instruments such as the Berne Convention, the TRIPs Accord, and the pending WIPO Copyright Treaty, as well as by harmonization measures within the European Union. The second part of this Article addresses the place that remains for national copyright norms, first through gaps left in the WIPO, WTO and EU multilateral instruments, and second, through choice of law. In the latter instance, a national norm will govern a multinational copyright contract or dispute, but other national copyright norms may be eluded.

    Finally, this Article considers what role should remain for national copyright laws. National copyright laws are a component of local cultural and information policies. As such, they express each sovereign nation's twin aspirations for its citizensexposure to works of authorship, and participation in their country's cultural patrimony. Perhaps that simply means that each country's local policies should prevail within its borders, whatever the national origin of the work locally received. On the other hand, the pervasive international dissemination of works of authorship also calls into question the extent to which authors and their works should be subject to different national standards. The Article concludes that national laws allocating copyright ownership form the strongest candidates for preservation; national exceptions to copyright present a more difficult, but potentially persuasive, case for persistence of national norms as well.

Facts on copyright

  • Many countries recognize certain moral rights of the author of a copyrighted work, following adoption of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (which in turn requires, inter alia, the implementation of the relevant provisions in the Berne Convention). Two key moral rights are the right not to have the work altered or destroyed without consent, and the right to be attributed as the author of the work. The Monty Python comedy troupe famously managed to rely on moral rights in 1975 in legal proceedings against American TV network ABC for airing re-edited versions of Monty Python's Flying Circus.
  • The American exclusive rights tradition is inconsistent with the notion of moral rights as it was constituted in the Civil Code tradition stemming from France's revolution. In the United States, exclusive rights are statutory and granted by Congress. The first major copyright case in the United States, Wheaton v. Peters, established that copyright was not a natural right or a common law right. Although the case was later nullified when the Supreme Court declared it null and void, it soon became a symbol for the morality of copyright. When the United States signed the Berne Convention, they stipulated that the Convention's "moral rights" provisions were addressed sufficiently by other statutes, such as laws covering libel and slander. In most of Europe it is not possible for authors to assign their moral rights (unlike the copyright itself, which is regarded as an item of property which can be sold, licensed, lent, mortgaged or given like any other property).
  • No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings. Later acts amended US Copyright law so that making 10 copies or more is considered commercial, and the Digital Millennium Copyright Act effectively permits DRM (Digital Rights/Restrictions Management) to prevent manufacture, importation, or distribution of recording devices if the device bypasses an access or copy control.

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