* Monica E. Antezana is an Executive Editor of the Boston College International & Comparative Law Review. She dedicates this note to her father, Fernando Antezana.
1 Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, Apr. 15, 1994, Legal Instruments—Results of the Uruguay Round vol. 1 (1994), 33 I.L.M. 1125, 1144 (1994) [hereinafter Marrakesh Agreement].
2 Such a panel report is distributed to all Members of the World Trade Organization (WTO) (after being preliminarily reviewed by the disputing parties) for adoption by the full Dispute Settlement Body, an entity comprised of representatives from all member states. The panel report is adopted unless there is a consensus specifically not to do so. See Marrakesh Agreement, supra note 1, art. 16(4). Note that this reverses the prior equivalent procedure under the General Agreement on Tariffs and Trade (GATT). Under this procedure, reports required a consensus before they could be adopted. The effect of this change was to go from a system where the losing party could block adoption of the report to a system in which adoption of the report is presumed absent clear consensus intention to the contrary. For general background and a more complete discussion of this process, see David Palmeter, National Sovereignty and the World Trade Organization, 2 J. World Intell. Prop. 77, 78–81 (1999).
3 Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, Legal Instruments--Results of the Uruguay Round vol. 31, 33 I.L.M. 1125, 1197 (1994) [hereinafter TRIPS Agreement]. The TRIPS Agreement is one part of the trade agreement establishing the WTO coming from the Uruguay Round Revision of the General Agreement of Tariffs and Trade, Oct. 30, 1947, 61 Stat. A-11, 55 U.N.T.S. 194 [hereinafter GATT], and it includes provisions on all aspects of intellectual property including copyright. See generally J.H. Reichman, Universal Minimum Standards of Intellectual Property Protection under the TRIPS Component of the WTO Agreement, 29 Int’l Law. 345 (1995) (providing an overview of the TRIPS Agreement).
4 See infra notes 17–29 and accompanying text (discussing evolution of the Berne Convention).
5 See infra notes 104–108 and accompanying text (discussing Article 33 of the Berne Convention).
6 For a comprehensive discussion of the Panel Report and a thorough analysis of its implications, see Graeme B. Dinwoodie, The Development and Incorporation of International Norms in the Formation of Copyright Law, 62 Ohio St. L.J. 733, 748–77 (2001).
7 See Fairness in Music Licensing Act, Pub. L. No. 105–298, 112 Stat. 2830–31 (1998) (codified primarily at 17 U.S.C. � 110(5)(B) (1976); �� 101, 504, 512 (1994 & Supp. IV 1998)).
8 The United States elected not to appeal the panel finding, and an arbitrator under Article 21 of the Dispute Settlement Understanding gave the United States until July 21, 2001 to bring itself into compliance with TRIPS. The United States has further indicated to WTO members that it intends to comply with the panel report and make the necessary amendments to U.S. law. See WTO, Award of the Arbitrator, United States--Section 110(5) of the US Copyright Act, WT/DS160/12 (Jan. 15, 2001), available at http://www.wto. org/english/tratop_e/dispu_e/160_12_e.pdf. For more on the U.S. response to the panel report, see Dinwoodie, supra note 6, at 762–64; see also U.S. Copyright Act, 17 U.S.C. � 110(5) (1976).
9 Digital Millennium Copyright Act (DMCA), 17 U.S.C. �� 1201–1205 (1998).
10 Uniform Computer Information Transactions Act (UCITA) (Final Version, Aug. 23, 2001), available at http://www.ucitaonline.com/ucita.html. UCITA was “[d]rafted by the National Conference of Commissioners on Uniform State Laws and . . . approved and recommended for enactment . . .” at its 1999 Annual Conference in Denver, Colorado. Id. Currently, only Maryland and Virginia have adopted UCITA. UCITA Online, Status of UCITA in the States (Apr. 6, 2001), at http://www.ucitaonline.com/slhpsus.html.
11 Collections of Information Antipiracy Act (CIAA), H.R. 354, 106th Cong. (1999).
12 Council Directive 2001/29/EC on the Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society, 2001 O.J. (L 167)10 [hereinafter Copyright Directive].
13 Council Directive 2003/31/EC on Certain Legal Aspects of Information Society Services, in Particular Electronic Commerce, in the Internal Market, 2000 O.J. (L 178) 1 [hereinafter E-Commerce Directive].
14 See id.; Copyright Directive, supra note 12, at art. 1.
15 See Jacqueline Lipton, Copyright in the Digital Age: A Comparative Survey, 27 Rutgers Computer & Tech. L.J. 333, 368–69 (2001).
16 Dinwoodie, supra note 6, at 777.
17 Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, 25 U.S.T. 1341, 828 U.N.T.S. 221(as last revisited July 24, 1971) [hereinafter Berne Convention].
18 See Dinwoodie, supra note 6, at 737.
19 See id. Germany was one of the strongest advocates of uniform standards. Id. (citing Jane C. Ginsburg, The Role of National Copyright in an Era of International Copyright, in The Role of National Legislation in Copyright Law 211, 213 (Deitz ed., 2000)) (discussing generally the events leading up to the Berne Convention).
20 Dinwoodie, supra note 6, at 738. Dinwoodie notes that even as early in copyright history as the late nineteenth century, the copyright laws of several European countries were adequately developed to highlight the differences among countries. Id. at 737. Attempting to achieve uniform standards would have been even more difficult in such areas where “divergent national jurisprudence had already taken root.” Id. Accordingly, rigid uniform standards such as those advocated by Germany would more likely act as a deterrent to Berne adherence rather than as the intended vehicle to encourage intellectual property harmonization. Id. at 737–38.
21 See id. at 738.
22 See id.
23 See id. at 739.
24 See id.
25 See Report Accompanying the Berne Convention Implementation Act, H.R. REP. NO. 100–609, at 11–13 (1988) (summarizing the revisions and completions of the Berne Convention). The Berne Convention was revised in Berlin in 1908, in Rome in 1925, in Brussels in 1948, in Stockholm in 1967, and in Paris in 1971. Id.
26 See Craig Joyce, et al., Copyright Law 35 (5th ed. 2001).
27 Id.
28 Id.
29 Id.
30 See id. (citing Berne Convention).
31 See Joyce, supra note 26, at 35.
32 See id. (citing Sam Ricketson, The Berne Convention for the Protection of Literary and Artistic Works: 1886–1986, at 151–52 (1987)). Note the use of the word “union” to connote the group of member states that has signed on to the Berne Convention. Id. at 35, n.48. It has been suggested that this usage was intended to perform a “symbolic function” beyond simply the narrow meaning within international law as a group of member states. “It can be seen as embodying the ultimate ideal of universal codification—an international regime under which authors are protected uniformly everywhere throughout the territory of the Union. It this ideal now seems obsolete, or even dangerously out of touch with modern realities, it should be recalled that the protection of the Berne Convention has been steadily enhanced over the first century of its existence, and that it does presently embody a limited international codification of the law relating to authors’ rights.” Id.
33 Id. at 35.
34 Id.
35 Id.
36 Joyce, supra note 26, at 35–38.
37 See id. at 37.
38 Peter Jaszi, International Copyright from Basics to Current Issues, in Advanced Seminar on Copyright Law 2001 (PLI Pats., Copyrights, Trademarks, & Literary Prop. Course, Handbook Series, 2001), available at 653 PLI/PAT 301, 327 (2001).
39 See Berne Convention, supra note 17, art. 6bis(1).
40 See id.
41 Id.
42 Id. art. 6bis(2).
43 Joyce, supra note 26, at 625.
44 Id.
45 See Irene Segal Ayers, The Future of Global Copyright Protection: Has Copyright Law Gone Too Far?, 62 U. Pitt. L. Rev. 49, 65 (2000).
46 Lipton, supra note 15, at 335.
47 Roberta Rosenthal Kwall, “Author-Stories:” Narrative’s Implication for Moral Rights and Copyright’s Joint Authorship Doctrine, 75 S. Cal. L. Rev. 1, 5 (2001).
48 Lipton, supra note 15, at 335.
49 See id.
50 See id.
51 Dinwoodie, supra note 6, at 766.
52 See id.
53 Joyce, supra note 26, at 65.
54 See Ayers, supra note 45, at 65.
55 Joyce, supra note 26, at 37.
56 Id. at 626.
57 Id.
58 Id.
59 Id.
60 Joyce, supra note 26, at 33.
61 Id.
62 Id.
63 Id.
64 Id. at 33–34. The President could exert this authority “by proclamation.” Id.
65 See Joyce, supra note 26, at 34.
66 See id.
67 Id.
68 Id.
69 Id.
70 Joyce, supra note 26, at 34 n.45.
71 Id.
72 See id. at 34.
73 Id.
74 Id.
75 See Joyce, supra note 26, at 34.
76 Id. at 37.
77 See id.
78 Id. at 34 n.45.
79 Id.
80 Joyce, supra note 26, at 34.
81 Id.
82 See Alexander A. Caviedes, International Copyright Law: Should the European Union Dictate its Development?, 16 B.U. Int’l L.J. 165, 173 (1998).
83 Joyce, supra note 26, at 34.
84 Id.
85 See id. at 21.
86 See id. at 22–23.
87 Id. at 23.
88 See Joyce, supra note 26, at 24.
89 See id. at 23.
90 Id. at 39.
91 See id.
92 See id.
93 See Joyce, supra note 26, at 38–39.
94 Id. at 38–40; see also Berne Convention Implementation Act of 1988, Pub. L. No. 100–568, 102 Stat. 2853 (1988) [hereinafter Berne Convention Implementation Act].
95 See Joyce, supra note 26, at 39.
96 Id.
97 Id.
98 Id.
99 Id. at 41.
100 See Joyce, supra note 26, at 41; see also Berne Convention, supra note 17, art. 6bis.
101 See Dinwoodie, supra note 6, at 740–41.
102 See id. at 741.
103 Id. Dinwoodie notes that these state and federal causes of action “coincidentally” offered authors protection in circumstances similar to those in which a moral right claim might lie. Id. (citing H.R. REP. No. 100–609, at 34) (listing the different causes of action upon which the U.S. argument of compliance was based).
104 See Henry Hansmann & Marina Santilli, Authors’ and Artists’ Moral Rights: A Comparative Legal and Economic Analysis, 26 J. LEGAL STUD. 95, 97 (1997).
105 Id. (citing Ralph S. Brown, Adherence to the Berne Copyright Convention: The Moral Right Issue, 35 J. Copyright Soc’y 196, 205 (1987–88)).
106 See Dinwoodie, supra note 6, at 741. Further, “[i]t is the lack of effective compliance among Berne Countries, rather than the protection given moral rights in American law, that removes Article 6bis as an obstacle to U.S. adherence.” Edward J. Damich, Moral Rights in the United States and Article 6bis of the Berne Convention: A Comment on the Preliminary Report of the Ad Hoc Working Group on U.S. Adherence to the Berne Convention, 10 Colum.-VLA J.L. & Arts 655, 655 (1986).
107 See Berne Convention, supra note 17, art. 33, art. 33(1).
108 See J.H. Reichman, Enforcing the Enforcement Procedures of the TRIPS Agreement, 37 VA. J. INT’L L. 335, 339 n.17 (1997). No “state ever took such action, nor did any invoke the doctrine of retaliation and retorsion theoretically available under international law for violation of international minimum standards of intellectual property protection.” Id.
109 See id. at 339.
110 See id.
111 See Damich, supra note 106, at 662.
112 See id. at 662–63.
113 See id.
114 See Jane C. Ginsburg, Art and the Law: Suppression and Liberty, 19 Cardozo Arts & Ent. L.J. 9, 10 (2001).
115 Berne Convention Implementation Act, supra note 94, at 2853.
116 See H.R. Rep. No. 100–609, at 37–39.
117 See Ginsburg, supra note 114, at 10–11.
118 Joyce, supra note 26, at 38.
119 Id. at 38–39.
120 Id. at 39.
121 Id.
122 Id.
123 See Joyce, supra note 26, at 39.
124 Id.
125 Id. at 36.
126 See id.
127 Id.
128 Joyce, supra note 26, at 36
129 See id. at 33.
130 Id. at 637.
131 See Visual Artists Rights Act (VARA), 17 U.S.C. �� 101, 102, 106(a), 107, 601 (1990).
132 See id. � 106A(a)(3)(B). Note that the right to prevent destruction of works of visual art only applies if the work is of “recognized stature” under the Act. Id.
133 Id. � 101.
134 See id. � 106A(c)(3) (stating that integrity rights do not apply to reproductions). However, some state moral rights statutes protect images of art works, as well as the physical originals, from distortion and then the subsequent attribution back to the artist. See, e.g., Wojnarowicz v. American Family Assn., 745 F. Supp. 130 (S.D.N.Y. 1990) (construing the N.Y. Artists’ Authorship Rights Act, N.Y. Cultural Affairs Law � 14.03(1) (McKinney’s Supp. 1990)).
135 Ginsburg, supra note 114, at 11.
136 North American Free Trade Agreement, Dec. 17, 1992, U.S.-Can.-Mex., 107 Stat. 2057 (1994), 32 I.L.M. 605 (1993); GATT, supra note 2.
137 See Uruguay Round Agreements Act, Pub. L. No. 103–465, �� 101–103, 108 Stat. 4809 (1994).
138 Sonny Bono Copyright Term Extension Act, Pub. L. No. 105–298, 112 Stat. 2827 (1998).
139 E. Scott Johnson, Law Gives Copyright New Life, Nat’l L.J., Feb. 8, 1999, at C12. The EU had already adopted a “life of author plus 70” standard. Id.
140 See id. It is interesting that the Copyright Term Extension Act lengthened the duration of many valuable copyrighted works due to enter the public domain before the end of the twentieth century. Included among these are George and Ira Gershwin’s “Fascinating Rhythm,” George Gershwin’s “Rhapsody in Blue,” and Disney’s “Steamboat Willie” cartoon (the first appearance of the Mickey Mouse character) and “Winnie the Pooh.” Id.
141 Id.
142 Id.
143 See id.
144 See Ayers, supra note 45, at 74.
145 Jaszi, supra note 38, at 328.
146 Id.
147 See Hansmann & Santilli, supra note 104, at 97.
148 Jaszi, supra note 38, at 328.
149 See Hansmann & Santilli, supra note 104, at 97.
150 Jaszi, supra note 38, at 328.
151 Id.
152 Id.
153 Id.
154 Joyce, supra note 26, at 29.
155 Id.
156 See Kwall, supra note 47, at 21.
157 See id. at 20.
158 U.S. Const. art. I, � 8, cl. 8.
159 See Ayers, supra note 45, at 66.
160 Id.
161 See Kwall, supra note 47, at 20.
162 See id. (citing Peter Jaszi, Toward a Theory of Copyright: The Metamorphoses of “Authorship,” 1991 Duke L.J. 455, 471 who addresses Stowe v. Thomas, 23 F. Cas. 201 (C.C.E.D. Pa. 1853) (No. 13,514)). The recognition of “the work” as a legal concept increased the authority of publishers, who could then preside over the work and even exclude the author from any measure of control over the work. Id. at 478. Jaszi further discusses the apparent increase in U.S. interest in the moral rights doctrine, but notes that the United States still largely ignored the author’s perspective and concerns. Id. (citing Marci A. Hamilton, Copyright at the Supreme Court: A Jurisprudence of Deference, 47 J. Copyright Soc’y U.S.A. 317, 326 (2000)) (showing Supreme Court rejection of “an author-centered version of the copyright law”).
163 Ayers, supra note 45, at 54 (noting also that such economic justification was largely influenced by the Chicago Law and Economics movement).
164 Id.
165 Hansmann & Santilli, supra note 104, at 96.
166 Id. at 97.
167 Id. (citing generally Thomas Goetzl, California Art Legislation Goes Federal: Progress in the Protection of Artists’ Rights, 15 Hastings Comm. & Ent. L.J. 893 (1993)).
168 Id. It is still contended that more should be done to protect authorial moral rights. Id. (citing Jane Ginsburg, Moral Rights in a Common Law System, in Moral Rights Protection in a Copyright System 18 (Peter Anderson & David Saunders eds., 1992)).
169 See id.
170 Hansmann & Santilli, supra note 104, at 142.
171 Id.
172 Id.
173 Id.
174 Id.
175 See Hansmann & Santilli, supra note 104, at 97, 142.
176 See id. at 142.
177 Id.
178 See id.
179 Id.
180 See Hansmann & Santilli, supra note 104, at 142.
181 Id.
182 Mark Owen, International Ramifications of Doing Business On-Line: Europe, in Fourth Annual Internet Law Institute (PLI Pats., Copyrights, Trademarks, & Literary Prop. Course, Handbook Series, 2001), available at 661 PLI/PAT 627, 635 (2001).
183 Id.
184 Id.
185 Id.
186 Id.
187 Lipton, supra note 15, at 335.
188 Owen, supra note 182, at 636.
189 Lipton, supra note 15, at 336.
190 Id.
191 Id.
192 Owen, supra note 182, at 635–36.
193 Id.
194 Id.
195 Virginie L. Parant, Copyright Harmonization in the European Union: The Digital Alibi, 16 Ent. & Sports Law. 22, 32 (1998).
196 Copyright and Related Rights in the Information Society: Green Paper from the European Commission to the European Council, COM (95) 382, available at http://europa. eu.int/scadplus/leg/en/lvb/l24152.htm (last visited Mar. 5, 2003) [hereinafter Copyright and Related Rights].
197 Parant, supra note 195, at 22 (citing Copyright and Related Rights).
198 Id.
199 Id.
200 See generally, Copyright Directive, supra note 12.
201 Id. art. 1.
202 Id. art. 2. Pursuant to Article 2:
Member States shall provide for the exclusive right to authorize or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part: (a) for authors, of their works; (b) for performers, of fixations of their performances; (c) for phonogram producers, of their phonograms; (d) for the producers of the first fixation of films, in respect of the original and copies of their films; (e) for broadcasting organizations, of fixations of their broadcasts, whether those broadcasts are transmitted by wire or over the air, including by cable or satellite.
Id. art. 2.
203 Id. art. 3. Article 3 states:
Member States shall provide authors with the exclusive right to authorize or prohibit any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.
Id. art. 3.
204 Id. art. 4. Article 4 states: “Member States shall provide for authors, in respect of the original of their works or of copies thereof, the exclusive right to authorize or prohibit any form of distribution to the public by sale or otherwise.” Id. art. 4.
205 Copyright Directive, supra note 12, art. 5.
206 Id. arts. 6, 7.
207 Id. art. 6.
208 Id. art. 7.
209 See Bruce A. McDonald, International Intellectual Property Rights, 35 Int’l Law. 465, 469 (2001).
210 Id.
211 Michael P. Ryan, The Function-Specific and Linkage-Bargain Diplomacy of International Intellectual Property Lawmaking, 19 U. Pa. J. Int’l Econ. L. 535, 576 (1998).
212 See id.
213 Id.
214 See id.
215 See id.
216 See Ryan, supra note 211, at 576.
217 See id. at 576–77. Other international conferences were held in Palo Alto, California in March 1991, Paris in June 1994, Mexico City in May 1995, and Naples in October 1995. Id. at 576.
218 See Graeme B. Dinwoodie, A New Copyright Order: Why National Courts Should Create Global Norms, 149 U. Pa. L. Rev. 469, 479 (2000).
219 See id.
220 See id.
221 See id.
222 Id.
223 See Eldred Press v. Reno, 74 F. Supp. 2d 1, 3 (D.D.C. 1999) (upholding the constitutionality of the provision of the Sonny Bono Copyright Term Extension Act that extends the copyright protection term by 20 years for already existing works).
224 See id.
225 See id.
226 Defendant’s Memorandum in Opposition to Plaintiff’s Motion for Judgment on the Pleadings at 4-7, Eldred Press v. Reno, 74 F.Supp.2d 1 (D.D.C. 1999) (No. 99–0065), available at http://eon.law.harvard.edu/openlaw/eldredvashcroft/cyber/Govt_Rep.pdf (last visited Feb. 25, 2003) [hereinafter Defendant’s Memorandum].
227 See id. at 8-14.
228 See Eldred Press, 74 F. Supp. 2d, at 3.
229See Defendant’s Memorandum, supra note 226, at 11-12.
230 See generally Copyright Directive, supra note 12.