(Available episodes so far here).
Whilst it can be disputed whether the new WIPO Treaty is consistent with the history and spirit of the established legal framework, there is no actual provision preventing countries per se from entering into international agreements establishing maximum protection levels in the field of copyright law.
To see this, it should first be recalled that specific provisions enshrined in various treaties and conventions in the field, notably the Berne Convention, the Rome Convention, the TRIPS Agreement, the WCT, the WPPT, and the Beijing Treaty on Audiovisual Performances, contribute to the establishment of a rather complex international copyright system, at whose root lies the principle of national treatment, i.e. the non-discrimination rule in favour of foreign nationals from contracting states. According to this rule, the level of protection accorded to foreign works should not be lower than the protection granted to country of origin works. Put differently, whatever the level of protection under domestic law, the country is obliged to offer the same level of protection to nationals of other contracting countries. From its beginning, the international copyright system also contained obligations for contracting states to grant a minimum level of protection of foreign works, the so-called minimum rights. In the original 1886 Berne Convention, these rights were limited to translation, adaptation and public representation of dramatic or dramatico-musical works, but since those early days the area of minimum protection offered by binding international instruments has constantly and significantly broadened.
For contracting parties of the Berne Convention in particular, the relations to new international instruments are governed by Art. 20, which foresees the possibility to enter into “special agreements” among themselves “in so far as such agreements grant to authors more extensive rights than those granted by the Convention, or contain other provisions not contrary to this Convention” (emphasis added). Thus, the last part of the provision prevents a group of contracting countries from entering agreements among themselves providing a lower level of protection than the conventional minimum rights, if this is contrary to the Convention. Therefore, special agreements on limitations and exceptions, which by their very nature hamper the minimum Convention rights, are permitted only if they are otherwise Berne-compliant, i.e. if they are compatible with the three-step test framework set out in Art. 9(2) for exceptions to the reproduction right, or with other Berne exceptions or limitations, such as for instance Art. 10(2) covering teaching.
Whilst it can be disputed whether the new WIPO Treaty is consistent with the history and spirit of the established legal framework, there is no actual provision preventing countries per se from entering into international agreements establishing maximum protection levels in the field of copyright law.
To see this, it should first be recalled that specific provisions enshrined in various treaties and conventions in the field, notably the Berne Convention, the Rome Convention, the TRIPS Agreement, the WCT, the WPPT, and the Beijing Treaty on Audiovisual Performances, contribute to the establishment of a rather complex international copyright system, at whose root lies the principle of national treatment, i.e. the non-discrimination rule in favour of foreign nationals from contracting states. According to this rule, the level of protection accorded to foreign works should not be lower than the protection granted to country of origin works. Put differently, whatever the level of protection under domestic law, the country is obliged to offer the same level of protection to nationals of other contracting countries. From its beginning, the international copyright system also contained obligations for contracting states to grant a minimum level of protection of foreign works, the so-called minimum rights. In the original 1886 Berne Convention, these rights were limited to translation, adaptation and public representation of dramatic or dramatico-musical works, but since those early days the area of minimum protection offered by binding international instruments has constantly and significantly broadened.
For contracting parties of the Berne Convention in particular, the relations to new international instruments are governed by Art. 20, which foresees the possibility to enter into “special agreements” among themselves “in so far as such agreements grant to authors more extensive rights than those granted by the Convention, or contain other provisions not contrary to this Convention” (emphasis added). Thus, the last part of the provision prevents a group of contracting countries from entering agreements among themselves providing a lower level of protection than the conventional minimum rights, if this is contrary to the Convention. Therefore, special agreements on limitations and exceptions, which by their very nature hamper the minimum Convention rights, are permitted only if they are otherwise Berne-compliant, i.e. if they are compatible with the three-step test framework set out in Art. 9(2) for exceptions to the reproduction right, or with other Berne exceptions or limitations, such as for instance Art. 10(2) covering teaching.
Furthermore, Art. 20 of the Berne Convention implies that contracting parties are prevented from entering agreements not affecting the minimum rights as such, but violating the principle of national treatment. The non-discrimination rule means that exceptions and limitations foreseen by a special agreement should equally apply to local and foreign works. In fact, if they applied only to foreign works, these works would be less protected than domestic works. Thus, if a country, in compliance with the newer agreement, introduced mandatory exceptions for foreign works without providing for substantially equivalent exceptions applying to domestic works, it would act “contrary to this Convention” within the meaning of Art. 20.
(To be continued)
