Re: WIPO and the Digital Millenium Copyright Act

On Wed, 6 Jan 1999, Charles Oppenheim <c.oppenheim[_at_]lboro.ac.uk> wrote:
>
> I have been asked the following questions by a UK contact regarding the
> Digital Millenium Copyright Act:
>
> > Article 5 of the WIPO Copyright Treaty refers to 'the selection or
> > arrangement of their contents' (databases), therefore it deals with
> > copyright rather than sui generi right
> >
> > Article 22 states that 'No reservation to this Treaty shall be
> > admitted'.
> >
> > Does the Article 22 not imply that signatories of the Treaty accept
> > the Treaty as it stands rather than 'pick and choose'?
> >
> > Since the the H.R. 2652 Antipiracy Act has already been passed in
> > May 1998, it then follows that those databases which are eligible
> > for this protection are protected in the new digital environment.
> >
> > Can this be interpreted then that in the USA the protection of
> > databases under this new IPR has been brought up to date whereas
> > copyright in databases has not (and would have to be seeked under
> > the "Berne Convention Implementation Act of 1988")
>
> I would be grateful for any comments list members may have on these
> queries.

Dear Prof. Oppenheim,

Although not a member of the list group, I do follow the discussions with some frequency and thought that I might offer a few thoughts. I am a US copyright lawyer in London and was formerly with the US Senate where I was extensively involved in negotiating the WIPO treaties. I think your correspondent needs to be aware of a few basic points regarding treaties and statutes. First, he/she seems to think that the language of a treaty binds a ratifying state to implement it in a certain way. (As an aside, it should be noted that a "signatory" of the WIPO treaties actually has no obligations, not even one to ratify the treaties; only a state that ratifies the treaties is bound by their provisions). This is not necessarily true. A state is its own judge of the question of whether or not it has adequately or accurately implemented a treaty obligation and there is no recourse except through diplomatic channels for a failure to do so. Thus a state certainly can pick and choose which provisions to follow and how it will implement them. Such actions can have consequences in the diplomatic field, but they are entirely without consequences in the courts and other US legal arenas. For example, the US ratified the Berne Convention in 1989 without any attempt whatsoever to implement the moral rights provision (art. 6bis) and this state of affairs can continue indefinitely. This is precisely why trade agreements such as the GATT (requiring adherence to all of the Berne Convention except art. 6bis) are so much more effective: they have enforcement mechanisms that normal treaties do not.

Art. 22's reference to a "reservation" under the treaty cannot be construed to touch on matters of adequate or insufficient implementation, which is what your correspondent is arguing. A reservation under the treaty is in its usual sense (as in the common reservation of performance rights under the Rome Convention on Neighbouring Rights) a mechanism for a state to adhere to a treaty without having to implement the particular provision as to which the treaty permits a reservation. The WIPO homepage has many examples. But a state which fails to implement a treaty to the satisfaction of some third party is not relying on a reservation. The US claims to have implemented the WIPO treaties fully. There is no tribunal or other judge who is competent to say that they have not. The US Congress is the sole arbiter of this question.

So my bottom line is this: if there is language in the DCMA that arguably protects databases or an absence of language that protects them, that is the end of the analysis. No provision of the treaty will be used by a US court to add to the statute provisions that are not there. If the Congress has failed adequately to implement the treaty, only Congress, not the courts, can remedy that. Yes, the US has an obligation under international treaty law to protect databases as copyrighted works (Art. 5). (As a techincal matter it will only have this obligation at the point in time when the treaties go into force -- i.e., when the 30th state ratifies). If they fail to pass a statute that adequately does this, the remedy is to complain to Congress, or, for foreign nationals who are able to claim the benefits of the treaty, to complain to their foreign office.

Sorry to sound so doctrinaire about this point, but it is one that comes up with some frequency in international law. There are a few states (such as Portugal) in which treaty language can be directly applied by the national courts, but that is very rare.

Best regards,

Darrell Panethiere
<darrell.panethiere[_at_]ifpi.org>

IFPI
London
(all comments are my own personal viewpoint and do not constitute legal advice) Received on Tue Jan 12 1999 - 18:41:24 GMT