Re: Self-Executing Status of WIPO Copyright Treaty

On Thu, 17 Jun 1999, Larry Helfer <larry.helfer[_at_]lls.edu> wrote:
>
> Does anyone know whether the Senate, the Congress or the President ever
> took a position on whether the 1996 WIPO Copyright Treaty is or is not
> self-executing? The Senate's resolution of ratification of the treaty
> on Nov. 12, 1998 is silent on the issue, and I can find nothing in the
> Digital Millennium Copyright Act or its legislative history on this
> issue.

Larry: This is not directly responsive to your inquiry. I'm sure that you've gone through the legislative materials as thoroughly as possible. However, if it can be argued that the legislation fully implements the treaty terms, then it can also be argued that the courts have no need to apply the treaty terms directly, thus mooting the issue of self-execution. Some courts seem to be making an assumption of this sort in U.S. trademark cases relative to foreign parties claiming under the Paris Convention. This approach is all the more plausible in the context of the DMCA with all its excruciating detail. The legislators may be said to be saying to the courts: The treaty is vague just where the DMCA is specific -- so don't look to the treaty, but legislative specifics for operative rules. For this argument, see Geller, _International Copyright: An Introduction_, at section 3[2][c]. I've not yet applied it there to the DMCA, but you have prompted me to recycle this response into a footnote there.

     Paul Geller
http://www-rcf.usc.edu/~pgeller/
<pgeller[_at_]law.usc.edu> Received on Fri Jun 18 1999 - 16:39:58 GMT