[*PG415]THE EUROPEAN UNION INTERNET COPYRIGHT DIRECTIVE AS EVEN MORE THAN IT ENVISIONS: TOWARD A SUPRA-EU HARMONIZATION OF COPYRIGHT POLICY AND THEORY

Monica E. Antezana*

Abstract:Evolving global markets in electronic commerce highlight the importance of developing a copyright regime capable of flowing with the changing landscape of international intellectual property law. Traditional boundaries based on time and distance erode as business, education, and the world at large become more digitized. In order to respond to the increasingly widespread digital age, copyright law must become less nationalistic and more global in scale. Both the United States and the European Union have acknowledged the dynamics of intellectual property in today’s digital revolution. The United States has responded with, among others, the Digital Millennium Copyright Act and the Uniform Computer Information Transactions Act, and the European Union has similarly answered with its Directives on Copyright and E-Commerce. Historically, the United States, in contrast with the European Union, has shown reluctance to recognize moral rights as an important aspect of copyright law. Going forward, it is in the interest of both trading entities to work together to create a more harmonized market that will be better suited to international business in the 21st century.

Introduction

International copyright law and its related issues and limitations, which were formerly more conceptual theory than legal practicality, have become increasingly concrete as technology and the internet have created substantial global markets in electronic commerce (e-commerce). In June 2000, a panel of the Dispute Settlement Body (DSB) of the World Trade Organization (WTO)1 issued the first opin[*PG416]ion (panel report)2 in its history on an alleged violation of the copyright provisions contained in the Agreement of Trade Related Aspects of Intellectual Property (the TRIPS Agreement).3 Although significant international copyright agreements have existed for well over a century,4 until recently no dispute regarding member state compliance had ever been submitted to a formal dispute settlement process,5 much less one supported by effective mechanisms of enforcement. Even so, after adoption by the full DSB of the panel report6 which found a recent amendment of Section 110(5) of the United States Copyright Act7 to be in violation of U.S. obligations under the TRIPS Agreement, the United States is now obliged to amend its copyright law or to face damages or trade sanctions for its violation of the TRIPS Agreement.8 It follows that with such enforcement [*PG417]mechanisms in place, and with the DSB willing to challenge the national procedures of individual countries, the United States and the European Union (EU), two major worldwide trading entities, will find it increasingly necessary to achieve accord not only in the burgeoning area of e-commerce but also in intellectual property law in general.

The United States made its first such attempts with its 1998 Digital Millennium Copyright Act (DMCA),9 the Uniform Computer Information Transactions Act (UCITA),10 and the proposed Collections of Information Antipiracy Act (CIAA).11 The EU has followed with its Directives on Copyright12 and E-Commerce,13 two directives intended to progress further toward harmonization of intellectual property laws throughout the EU.14 Eventually, such directives and their accord with the EU’s major trading partners could lead to harmonization at a global level—an increasingly important goal in today’s digital age.15 Indeed, “[c]ultural assimilation and the ability of digitized works to evade national regulation make it significantly more likely that modern copyright litigation will entail analysis of different national laws.”16

Copyright law must give way to this digital revolution and, in doing so, become less nationalistic and more global in its scale. This note explores the history of copyright law in Europe and in the United States, providing emphasis on the evolution of the moral [*PG418]rights doctrine in the United States as compared with Europe. It also addresses the impact of the internet and e-commerce on the traditional conceptions and mechanisms of copyright law. Finally, this note concludes that if the EU and the United States are to remain prominent world trading partners and primary producers of copyrighted material to each other and to the rest of the world, the digital revolution necessitates not only increased harmonization of copyright law throughout the EU, but also between the EU and the United States. It is this movement toward harmonization that will necessitate greater U.S. recognition of the moral rights doctrine. Through such recognition, the EU and the United States will enjoy a state of heightened copyright policy congruity within which both world powers can operate.

I.  The Berne Convention as an Early and Ongoing Attempt to Globalize Copyright Law

A.  The Early Days of the Berne Convention as a Mechanism to Safeguard Both Moral Rights and Economic Interests in Copyright

International copyright relations seriously commenced in 1886 with the conclusion of the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention).17 Countries participating in the dialogue leading to the Berne Convention sought copyright protection outside national borders for the works of their own citizens.18 Such an objective could have been achieved in a few different ways. Several countries supported a comprehensive universal copyright law that would have established uniform standards to be applied in all adherent countries.19 However, such a strict, demanding approach was eventually deemed too much of a potential obstacle to the overall growth of the Berne Union.20

[*PG419] This being the case, the text of the 1886 Berne Convention sought broader international copyright protection through the principle of national treatment—a provision in the Berne Convention that essentially served as the “equal protection clause of international copyright law.”21 The national treatment provision required that member countries provide nationals of other member countries, or works first published in other member countries, with copyright protection at least equivalent to that offered to their own citizens and works.22 This approach obliged member parties to agree to a set of “minimum standards of copyright protection” that were neither as stringent nor as comprehensive as those proposed by advocates of uniform standards.23 The Berne Convention minimum standards set forth a required level of copyright protection for member states, but they did not prevent countries from providing more extensive protection to copyright holders and copyrighted works within their borders.24 The Berne Convention was revised five times over the next century, but the basic structure of national treatment plus minimum standards was preserved.25

The current text of the Berne Convention, the text with which the United States complied in 1988, is the Paris Act of 1971.26 The World Intellectual Property Organization (WIPO) manages the Berne Convention.27 A “specialized agency” within the United Nations, WIPO researches, designs, and provides services to ensure worldwide intellectual property protection.28 The WIPO Director General and staff supervise the “Berne Union,” an entity comprised of “Member States” that was established by the Berne Convention.29

[*PG420] The First Article of the Paris Act reads: “(t)he countries to which this Convention applies constitute a Union for the protection of the rights of authors in their literary and artistic works.”30 By explicitly and immediately addressing the protection of authors’ rights in this way, the language of the treaty connects the Berne Union with that conception of copyright primarily based on “authors’ rights,” as opposed to the economic or utilitarian approach to copyright protection (to which the United States primarily adheres).31 Generally, the aspiration to harmonize the protection of artistic, intellectual property throughout the world has propelled the evolution and actions of the Berne Union since its inception.32

Following this First Article of the Paris Act, the next twenty articles comprise the Berne Convention’s substantive provisions which set forth both specific and general obligations compelled by membership within the Berne Union.33 The remaining rules are elective and thus may be, but are not required to be, adopted by member countries.34 Administrative provisions and an appendix that includes “special provisions for developing countries” follow the substantive provisions.35

The Convention relies on national compliance with “Convention minima,” obligations that generally are considered quite arduous in terms of intellectual property treatment, especially by U.S. standards.36 Specifically, the Berne Convention’s emphasis on “moral rights” as the primary justification for copyright law seems to clash with the traditional, economically-based U.S. approach.37

[*PG421]B.  The Berne Convention and the Principle of Moral Rights as the Driving Force Behind Copyright Law

The nonextensive text of Article 6bis of the Berne Convention addresses “moral rights.”38 The Berne Convention requires that certain “moral rights” be recognized “[i]ndependently of the author’s economic rights, and even after the transfer of the said rights.”39 Article 6 requires that all signatories protect authors’ and artists’ moral rights in their domestic laws.40 Article 6bis(1) provides that: “[T]he 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.”41 Article 6bis(2) mandates that these rights last at least until the economic rights end.42 It is here that the Berne Convention legitimizes the recognition of a general “droit moral” or “moral right” that conceives of an author’s work as much more than a simple economic, profit-making tool.43 In fact, such a moral right (in contrast with simple economic interests) is “inalienable,” and a “natural right” that arises from the idea of the work “as an extension of the author’s personality.”44 Indeed, in the civil law countries of Europe, copyright protection schemes developed initially from a natural law philosophy.45

The civil law tradition considers copyright an extension of the author’s or creator’s personality.46 As Professor Roberta Kwall writes, “[m]oral rights, or rights which protect the personal interests of all authors, safeguard the dignity, self-worth, and autonomy of the author.”47 Accordingly, only individuals can be “creators;” companies and organizations per se cannot be “creators” because they lack the (essential) “person” in “personality.”48

[*PG422] The basis for copyright protection is recognition of, and regard for, individual achievements of creation or production.49 Therefore, protection exceeds mere economic rights or interest in the monetary value of the work product.50 Indeed, “copyright law is about more than trade. It reflects values of personality and authorial integrity, and a balance of private rights and public access, that a trade equation might obscure.”51 At least the civil law tradition supported these values; accordingly, protection in such countries extends to “moral rights” such as the right to be identified as the creator of a work and the right to have the integrity of that work maintained and preserved.52

Such works are not simple commodities, but rather enjoy synonymy with the creator’s identity.53 Copyright theory, recognizing authorial importance in this way, is thus sharply prejudiced in favor of the author and stands, with only a few narrow exceptions, for strong copyright protection for authors.54 It is this concept of “moral rights” that the United States has hesitated to incorporate into its own copyright laws.55

The extent of the definition of moral rights differs among countries.56 Generally, the formulation of moral rights is made up of several similar and overlapping parts.57 Most consider an author’s moral rights to include:

1) the right of integrity: the right to insist that a work not be mutilated or distorted; 2) the right of attribution: the right to be acknowledged as the author of a work and to prevent others from naming anyone else as the creator; and 3) the right of disclosure: the right to decide when and in what form the work will be presented to the public.58

In fewer cases, moral rights include the right of withdrawal (the right to control the fate of all distributed copies) and the right to stop “excessive criticism” (this is based on the idea that criticism of the work [*PG423]amounts to criticism of the author, as the work is considered a simple extension of the author).59

C.  Initial U.S. Refusal to Participate in the Berne Convention

Until 1891, the United States lacked any “international copyright relations.”60 In fact, during much of the nineteenth century, the United States was infamous as a “pirat[e]” nation—the best-selling literary works in America were unapproved, “piratical” copies of British works.61 However, as times changed, the U.S. publishing industry began to feel its own economic pressures.62 The uncontrolled copying of British books began to create increasingly debilitating competition and, thus, out of economic necessity, the United States started to shift its own laws toward regulations more closely resembling those found in Europe.63

The Chace Act of 1891, an amendment to U.S. copyright law, gave the President authority to protect works originating in certain foreign countries, as long as those foreign countries furnished equivalent protection to the works of American authors.64 This began a series of similar proclamations in which the United States joined into bilateral copyright agreements with other countries.65 In each of these cases, the impetus behind enacting such agreements was to protect the valuable and expanding market of literary and artistic works originating within the United States.66

The United States increasingly seemed to be creating, in a “piecemeal” fashion, its own international copyright laws by means of these bilateral agreements.67 However, eventually such discrete arrangements made on a country-by-country basis became insufficient.68 Newer, brighter, and faster ways of communication and dispersal created a seemingly contracting universe of intellectual property; those regulations that once fit U.S. purposes both domestically and abroad [*PG424]became too simple as the world evolved into one of ever-heightening complexity.69

As a reaction to these changing world conditions, beginning in 1935 the U.S. Senate endeavored to ratify the Berne Convention, but rescinded ratification when it became obvious how drastically different U.S. copyright policies were from those of the Berne Convention countries.70 In order for the United States to have signed on to the Berne Convention at that point, it would have had to change its laws substantially, specifically those laws regarding term of protection and copyright formalities.71 In light of the fact that the U.S. approach to copyright matters focused on (and continues to focus on) providing authors merely with sufficient economic incentive to engage in creation, such changes were inimical to U.S. values at the time.72

By the early 1950s, the United States had begun to export increasing numbers of copyrighted works, and thus it became critical for the United States to take part in a more comprehensive and unified system of international copyright.73 The “piecemeal” agreements the United States had been entering into became glaringly inadequate for the task of protecting U.S. copyright interests worldwide.74 In fact, the United States recognized its need for greater international participation but still felt the standards of the Berne Convention were too different from U.S. standards to justify Berne Convention ratification at the time.75 The Berne Convention conception of a “moral right” recognizes an author’s continuing interest in his or her work.76 As such, the author may control certain uses of the work itself even after he or she has transferred economic rights to others—a concept squarely in conflict with traditional American copyright law, and thus a concept that veritably insured at the time that the United States would refuse to sign on to the Berne Convention.77

In response to these developments, a group of countries convened by the Copyright Law Division of the United Nations Educational, Scientific, and Cultural Organization (UNESCO) created the [*PG425]Universal Copyright Convention (U.C.C.) treaty between 1947 and 1952.78 The purpose of UNESCO in developing this treaty was to draw hesitant countries into a worldwide copyright system—essentially a pseudo-Berne type of union.79 Indeed, UNESCO sought to entice such nations by setting forth U.C.C. standards thought to be less stringent than those of the Berne Convention,80 believing that more reluctant nations would be willing to ratify the U.C.C. even while they were unwilling to ratify Berne.81 Specifically, the U.C.C. distinguished itself from the Berne Convention by its lack of a provision on moral rights, an absence pointedly designed to draw the United States under the U.C.C. umbrella.82 In fact, the U.C.C. ultimately functioned as a stepping stone to the Berne Convention.83 The United States elected to sign on to the U.C.C. in 1955.84

The United States Copyright Act of 1976 (1976 Act) represented both an overhaul of copyright legislation and also the first major change to U.S. copyright law since 1909.85 The 1976 Act began to bring U.S. law closer to some of the major standards of the Berne Convention.86 For example, the 1976 Act extended copyright term duration nineteen years—increasing the maximum term duration from fifty-six years to seventy-five years.87 In light of the fact that the (predominately European) moral rights conception seeks to expand and to extend authors’ rights over their works, such a duration extension began to make U.S. law look a little more like European law.88 The duration extension thus concomitantly made adhering to the Berne Convention minima slightly more palatable to the United States.89 The 1976 Act, however, still failed to constitute enough of a change in U.S. law through its implementation to further U.S. compatibility with Berne Convention standards.90 At the same time, and increasingly since the 1976 Act’s implementation, the United States [*PG426]began to move gradually toward a conception of copyright that at least minimally acknowledged authorial moral rights over works.91 Indeed, given U.S. interest in protecting its intellectual property works abroad, eventual Berne Convention compatibility seemed to be a foregone conclusion.92

The U.S. Congress began ostensibly to gravitate toward Berne Convention compliance in the late 1980s.93 In making this decision, Congress emphasized the worldwide value of U.S. intellectual property and acknowledged that protecting this valuable commodity required moving toward compliance with international standards.94 However, the fact remained that U.S. copyright law was (and still is) very different from the civil law approach in Europe.95 Accordingly, Congress took what has been considered a “minimalist” approach in amending U.S. copyright law.96 That is, Congress sought to amend U.S. law only as much as necessary to meet minimal Berne Convention obligations.97

The Berne Convention Implementation Act of 1988 (Berne Convention Implementation Act) amended prior U.S. law so as to bring it into compliance with Berne requirements.98 The amendments changed some technical rules with respect to notice, registration, and other formalities, but failed to adopt explicitly the Berne Convention approach to authorial moral rights.99 In fact, the United States signed on to the Berne Convention without actually adopting its Article 6bis—the article that emphasizes the importance of an author’s nontransferable and eternal right in his or her work simply because of his or her role as creator of the work.100

The Berne Convention allows member states flexibility in the implementation of its standards so that states may tailor their laws to fit with their own social mores, culture, and economic priorities.101 Historically, great deference has been shown to member states’ own [*PG427]interpretations of what compliance with the Berne Convention requires.102 Thus, the United States was able to adhere nominally to the Berne Convention in 1988 without offering any moral rights protection per se. Instead, it offered only a motley group of federal regulations and state common laws that, according to the U.S. interpretation, combined to extend the requisite protection to moral rights.103

Indeed, the United States claimed that its law had “evolved” to the point that, taken as a whole, it could provide the minimal safeguards for artists’ moral rights set forth in the Berne Convention.104 Congress further noted that even if U.S. law taken in totality still failed to provide this minimum protection, other member countries also were not in compliance and no objection had ever been made to their membership.105 While this may be true, the fact of the matter, as Professor Dinwoodie points out, is that U.S. success with its compliance argument probably resulted more from the “deferential” approach taken toward member state compliance with Berne obligations than it did from a searching analysis of U.S. law.106 Moreover, even though Article 33 of the Berne Convention permitted the referral of compliance disputes involving the Convention to the International Court of Justice,107 this mechanism had never been used.108

While U.S. adherence to the Berne Convention in the late 1980s introduced limited changes to certain minutia of U.S. law, perhaps more notably it reflected subtle and not-so-subtle changes in the [*PG428]American legal approach to copyright.109 In fact, U.S. adherence to the Berne Convention slightly has begun to shift the U.S. conception of copyright from one based in pure economics to one more grounded in moral rights.110 Perhaps the civil law’s author-centered tradition has begun to be absorbed into American legal culture.111 If this is so, then what began as an economic necessity may also have sown the seeds to create a cultural shift in American thinking.112 Such a shift could eventually push U.S. copyright law and, by extension, U.S. intellectual property law, closer to the ideal envisioned by the recent European Copyright Directive.113

Such favorable movement toward harmonization, however, may be wholly illusory without actual federal law recognition of an author’s moral rights in his or her creations.114 In the Berne Convention Implementation Act,115 Congress specifically declined to implement Article 6bis on the ground that existing federal and state laws and common law roughly equaled the Article 6bis guarantees of the right of integrity and of attribution.116 Of course, the Berne Convention’s inclusion of, and emphasis on, moral rights required that the United States address the moral rights issue in order to comply (at least ostensibly) with Berne Convention standards. However, in light of U.S. reluctance to recognize moral rights and the U.S. minimalist approach to compliance with the Berne Convention, the reality is that, absent federal legislation providing for protection against the infringement of moral rights, the United States still fails copyright holders in its lack of an integrated approach to the protection of moral rights.117

D.  U.S. Copyright After the Berne Convention Implementation Act

Before signing on to Berne on March 1, 1989, the United States was the only influential Western country not yet a Berne Convention signatory.118 Between 1955, when the United States signed on to the [*PG429]U.C.C., and the late 1980’s, the advantages of U.S. membership in the Berne Convention became increasingly evident.119 The United States had become the world leader in the exportation of copyrighted works and thus had a strong interest in doing whatever it could to limit the market of international piracy jeopardizing U.S. copyright holders’ creations.120 Further, the United States, by that time, had both removed itself from UNESCO and withdrawn its U.C.C. membership.121 Moreover, many U.S. trading partners were members of the Berne Convention.122 The Untied States had grown into a major intellectual property player, and U.S. entry into the Berne Union seemed to be the only way both to cultivate these relationships and to continue American influence in the copyright arena.123

Before U.S. entry into the Berne Union, U.S. copyright holders had to utilize the Berne Convention’s so-called “back door” provision in order to gain international protection for their works.124 Through this “back door to Berne,” U.S. authors or copyright holders could ensure copyright protection individually in each country in which they desired protection.125 Copyright owners had to meet each country’s specific requirements for protection—an onerous burden that presented cost concerns and increased risks to copyright holders.126 The procedures were costly because of the expense of creating and submitting separate applications for each target country.127 They were also risky because an applicant could fail to understand each country’s requirements and thus ultimately fail to gain protection.128 U.S. entry into the Berne Convention meant that American authors and copyright owners no longer had to rely on this “back door” procedure—those seeking protection for their works could rely on each member country of the Berne Union to recognize the copyright holders’ rights in his or her property through only one general application procedure.129

[*PG430] In 1990, Congress again amended the 1976 Act, explicitly granting limited “rights of attribution and integrity” to certain types of artists and their works.130 The Visual Artists Rights Act (VARA),131 enacted in 1990, grants authors of “works of visual art” the right “to prevent any intentional distortion, mutilation or other modification” of those works.132 VARA’s problem lies in its restrictiveness: it grants protection only to those artists whose works are included within VARA’s narrow definition of “works of visual art.”133 As such, VARA protects only a work’s physical original and thus fails to protect later representations or derivations of the art image.134 As Professor Ginsburg points out, “real” moral rights do much more than just safeguard the “alteration of the original physical object;” “real” moral rights also guard against “distortion of representations of the art image.”135

In 1994, the United States continued to work on its international copyright relations, implementing the North American Free Trade Agreement (NAFTA) and joining in the Final Act of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT).136 In December 1994, Congress enacted the Uruguay Round Agreements Act (URAA), by which (among other things) large numbers of foreign works in the U.S. public domain were granted retroactive protection.137

On October 27, 1998, President Clinton signed the Sonny Bono Copyright Term Extension Act (Copyright Term Extension Act), an act that lengthens (for the fourth time in the history of U.S. copyright law) the duration of copyright protection.138 With the enactment of the Copyright Term Extension Act, U.S. law now mirrors EU law with [*PG431]respect to copyright duration.139 The influence of major corporate copyright holders notwithstanding,140 the United States had to extend the copyright term in order to comply with the already longer term recognized by the EU; before the terms were harmonized by the Copyright Term Extension Act, U.S. copyright owners were disadvantaged in foreign countries vis--vis the “rule of the shorter term.”141 Under this rule, a work with an expired copyright in its home country could not enjoy protection in foreign countries, even where the foreign countries would provide longer protection under their own copyright laws.142 As such, U.S. copyright holders were disadvantaged when they could no longer receive protection in foreign countries due to the shorter copyright term in the United States.143 Indeed, the Copyright Term Extension Act was considered indispensable in order to compete effectively in international trade with the Europeans.144

II.  Principal Bases upon Which Copyright Rests
in the EU and in the United States

Berne Convention member countries normally manifest their recognition of moral rights through statute.145 However, even Berne Convention members with similar legal structures do not hold the same conceptions on moral rights.146 Within individual countries, scholars, legislators, and judges fail to agree on the interpretations of existing statutory and decisional law concerning artists’ moral rights.147 France, Spain, and many other civil law countries are committed to furnishing rights that are “absolute, personal, and actionable solely at the author’s discretion.”148 In fact, France is generally considered the most comprehensive country with respect to the scope [*PG432]of artists’ moral rights.149 Other civil law countries, however, stop short of such an express, affirmative commitment to authors’ rights.150

Further, such countries as the United Kingdom, Canada, and Australia have thus far declined to put economic considerations on the same level as moral rights.151 Argentina indirectly grants rights of integrity and paternity in its copyright law, requiring that its citizens not engage in acts that would alter the attribution of authorship in works.152 Moreover, a more expansive recognition of moral rights, to varying extents, can be found in the laws of Germany, Japan, Mexico, Morocco, the Netherlands, Nigeria, and Brazil. Each of these countries can be said to place more emphasis on moral rights than the United States currently does.153

Copyright in the civil law world is known as “droit d’auteur” in France, “derecho de autor” in Spain, and “Urheberrecht” in Germany—all terms that translate to “author’s (or authors’) rights.”154 In contrast, the United States uses the simple, common law term of “copyright,” and in doing so impliedly relegates the concept of “authors’ rights” to a position subordinate to that of economic justification.155

Though the civil law emphasizes “author autonomy and personal connectedness” to one’s work, U.S. law developed very differently.156 Early on, the United States emphasized “economic incentives to promote the creation of subject matter deemed important to our society.”157 The Copyright Clause of the U.S. Constitution empowers Congress “to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”158 As such, U.S. copyright law prioritizes a conception (indeed, merely an idea) of attaining counterpoise: “copyright law, rather than serving to protect authors’ (natural) rights or property interests, serves to sustain a balance of competing private and public interests.”159 That is, these private and [*PG433]public interests include both those of authors as well as more expansive social, cultural, and economic concerns.160

It follows that as U.S. law developed, the concept of copyright became concerned centrally with “the work” as opposed to the more romantic, civil law concern with the author.161 Accordingly, when the U.S. concept of “the work” completely eclipsed the authorship idea, U.S. law turned full throttle toward unapologetically favoring the rights of publishers, purchasers, and the general public over those of authors.162

Economic justification for copyright is based on the idea that copyrights serve primarily as a major market facilitator and as a mechanism for moving existing works to their most efficient, or “highest socially valued uses.”163 The market determines how copyright property rights are allocated, and in this way society achieves optimal efficiency—the balance between the rights of copyright holders and the rights of the public.164

Throughout history, the United States, like some other common law countries, did not recognize moral rights of artists in their works.165 Therefore, the implementation of VARA was a relatively big step for the United States in providing greater protection to artists’ moral rights.166 As of 1997, at least eleven states had incorporated some type of moral rights provisions into their statutes.167 Further, even without actual legislation, some U.S. courts have recognized a moral rights protection through either or both of two available mechanisms: (1) the extension or generous application of common [*PG434]law rights, or (2) an expansive reading of statutory rights such as the Lanham Act of trademark law.168

While only recently recognizing any sort of moral rights in copyright, the United States proceeded with great hesitation in implementing legislation addressing these rights.169 Indeed, the United States simply did not need such laws to protect its copyright property, as “nations that are principally importers rather than exporters have little incentive to protect the interests of producers.”170 Until the latter half of the twentieth century, for example, American artists had not risen to a level of prominence in the areas of painting and sculpture.171 Historically, serious American art collectors were interested primarily, if not exclusively, in art of foreign origin.172 Accordingly, it was not in U.S. interests to protect such foreign works with American legislation.173 However, as American artists achieved greater prominence, it became more advantageous for the United States to enact such legislation.174 It thus follows that the VARA of the 1990s concentrates its protection on painting and sculptural works.175 Economic need provided at least partial motivation for U.S. legislation (narrow as it is) to recognize moral rights.176

Additional motivation might have been less conspicuously economic in nature.177 U.S. export of products covered by conventional copyright—including books, movies, and recordings—also has become much more prevalent.178 As such, U.S. interest in having foreign nations protect copyrights in those works has concomitantly increased.179 The United States likely ratified the Berne Convention because of its strong interest in having those rights enforced abroad.180 Additionally, the 1990s VARA may have been seen as a rather benign, [*PG435]narrow, and limited measure toward showing “good faith compliance” with the standards of the Berne Convention.181

III.  The EU Envisions the Harmonization of Copyright
Law and Policy Brought About by the European
Parliament’s Internet Copyright Directive

A.  The EU Drives Toward Ever-Increasing World Trading Prominence vis--vis a Pan-European Approach

With all of this as background, trade between the United States and the EU now flourishes and constitutes a major part of world business.182 As trading partners, the two entities enjoy similar “size, prosperity, and outlook.”183 Further, the internet continues to cultivate explosive trade between the EU and the United States.184 Moreover, the EU is a rapidly expanding playing field for all types of e-commerce transactions.185 Revenues from e-commerce will likely exceed $300 billion by the year 2003.186

While EU member states are expected to act in accordance with EU legislation, EU law will not preempt national lawmaking, and therefore member states retain their own domestic legislative characters.187 EU laws in this area have always been “directives,” and thus they do not become effective until the member states implement their own respective legislation.188 An EU Directive focuses on a specific matter and sets forth recommended action with regard to that matter.189 Often, member states have significant flexibility as to how closely domestic legislation meets with the provisions of the Directive.190 Member states are usually allotted a two-year period to implement appropriate legislation.191

[*PG436] In response to this growing trade industry largely fueled by the internet, European lawmakers have begun to focus on e-commerce issues.192 However, while the EU works toward “pan-European harmonization,” each member state’s laws remain in effect.193 Thus, any given individual country’s approach may remain distinct from that approach taken on the level of either the United States or the EU as a whole.194

B.  The EU Copyright Directive: Its Short Past, Its Future, and Why It Should Be Adopted Without Undue Delay by Member States

In 1996, after a series of hearings in Brussels and Florence, the European Commission (Commission) announced that copyright harmonization must become and remain a priority for the EU.195 On July 27, 1995, the Commission issued the exhaustive Green Paper on Copyright and Related Rights in the Information Society (Green Paper)196—a document which, in the words of Single Market Commissioner Mario Monti, was meant to “contribute to a wide debate with all interested parties on the identification of a clear, stable and coherent regulatory framework for the development of the information society.”197

One major issue the drafters of the Green Paper addressed was whether the present status of copyright harmonization, at the single market, EU-wide level, was adequate to meet the rapidly increasing demands of the digital revolution.198 As far as the EU was concerned, the main difficulty created by the worldwide cyber market of the internet was (and, many believe, still is) “the danger of fragmentation of the Single Market as a consequence of a lack of harmonization between member states.”199

The Copyright Directive requires member states to harmonize their laws concerning the reproduction right, the right of communi[*PG437]cation to the public, the distribution right, and technological measures against circumvention of copyright management and protection systems.200 Article One outlines the intended scope of the Directive.201 Article Two sets forth a broad, comprehensive definition of the reproduction right, covering all relevant acts of reproduction, on-line or off-line, in material or immaterial form.202

Article Three aims to achieve harmonization of the member states’ laws concerning the right of communication to the public, providing a broad, comprehensive definition of “communications to the public” that addresses the interactive nature of the digital environment.203 Article Four seeks to achieve harmonization of the right of distribution for all types of works where this has not yet been done,204 and Article Five sets out exceptions to the rights set forth in Articles One through Four.205

Articles Six and Seven address the protection of technological measures and rights-management information.206 Article Six sets forth member states’ obligations as to technological measures,207 and Arti[*PG438]cle Seven addresses member states’ obligations concerning rights-management information.208

On February 14, 2001, the European Parliament formally adopted the European Copyright Directive.209 The Copyright Directive seeks to solidify the existence of an EU-wide “internal market in copyright and related rights,” emphasizes e-commerce, and creates a legislative framework that will be able to handle the impending challenges of the digital revolution.210

Accordingly, swift adoption of the proposed Directive is crucial to ensure a Community-wide market in copyright with a particular focus on new products, technology, and services. Further, the adequate protection of intellectual property will foster creativity and innovation and enhance the availability and public acceptance of new services. Ultimately, adoption of the Directive will advance the goal of meaningful harmonization while maintaining a balance between all the rights and interests involved.

IV.  Increased Levels of EU Copyright Harmonization Will Lead to Greater Global Harmonization as the United
States and the EU Strive Toward Achieving
Complementary Copyright Law and Policy

E-commerce and the digital revolution necessitate an integrated approach. Global e-commerce was a hot topic at the WIPO Conference in December 1996: members of national governments, companies, and nongovernmental agencies met in order to amend the Berne Convention with respect to copyright rights in an ever-changing and increasingly electronic world.211 Instant, interactive, and digitized global communication had begun to speed up not only business and trade transactions, but also domestic and international communications in general.212

However, the digital revolution has also made it possible to “pirate digitized music, films, and software” repeatedly, while maintaining the quality of the original.213 Distribution has become much [*PG439]quicker and easier, but unfortunately so has piracy.214 Indeed, the internet and e-commerce allow for a wholly different type of product distribution from what business and trade knew before the advent of the internet.215 Such a “paradigm-shift in product distribution,” while exciting from the perspective of the businesses and economies of the different nations, challenges conventional methods of information technology and the copyright system as a whole.216

At a WIPO-sponsored Intellectual Property and Technology conference in Cambridge, Massachusetts in April, 1993, the following special characteristics of the digital revolution were pronounced:

a) digital material is intangible until it is processed and projected through a microprocessor-controlled device; b) it can be copied repeatedly with no loss of quality; c) the way information is conveyed is flexible, as it can be combined, altered, mixed, and manipulated relatively easily; d) digital media has an indefinite life because it will not decay as time passes.217

Consumers of copyrighted works are now better able to control where and how copyrighted works materialize.218 Works can be printed out and e-mailed with relative ease and across international borders.219 Communication is essentially instantaneous.220 Where national borders once slowed down communication and business transactions, the digital revolution has created domestic and foreign markets that have become identical for all practical purposes.221 Indeed, “the ability of a single nation-state to implement autonomous cultural and information policies is diminishing; national policymakers need the cooperation of other nations if they wish to realize a particular goal (such as to ensure a secure environment for the creation and distribution of copyrighted works).”222

[*PG440] The EU and the United States will, by necessity if not by simple common sense, work together to create a harmonized market—a market better suited to continued trade during the digital revolution. U.S. copyright law is already affected by international considerations.223 As trade between the EU and the United States continues to flourish, such international considerations will only become more important to domestic courts and legislators.224

Consider the brief filed by the federal government in the recent case of Eldred Press v. Reno, a case that challenged the constitutionality of the Copyright Term Extension Act.225 The government, advocating that the Copyright Term Extension Act passed muster under the U.S. Constitution, argued that the constitutional purpose of promoting the progress of science and the useful arts was advanced logically by the grant of twenty extra years of protection to existing works.226

Such furtherance of constitutional purpose, the government argued, is brought about because the amendment brings U.S. law more into cohesion with the laws of the EU.227 The Court in this case did not actually reach that argument in upholding the constitutionality of the Copyright Term Extension Act,228 but in bringing up this point, the government recognized the emerging fact that international integration is an important aspect of U.S. copyright law.229

Conclusion

Even though internationalization has not been a U.S. priority in the past, it becomes increasingly necessary with the digital revolution. Trade between the EU and the United States is central to the economies of both entities, and requires harmonization in order to operate efficiently. Therefore, in the economic interest of both trading blocks, [*PG441]the EU and the United States will move toward harmonization that far surpasses even that envisioned by the EU Copyright Directive.230

?? ??