Re: Self-Executing Status of WIPO Copyright Treaty

On Fri, 18 Jun 1999, Paul Geller <pgeller[_at_]law.usc.edu> wrote:
>
> 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, I agree with your analysis. I'm simply surprised that US officials didn't follow recent past practice (i.e. Berne and TRIPs, human rights treaites) and make an unequivocal statement that the treaty is not self executing. As you've argued in an analogous context before, the international and domestic case law interpreting a treaty's text is not fixed in time, and can evolve with changes in technology, social and economic circumstances, etc. Were some states parties to the WIPO treaty at some future date to interpret one of its articles expansively to grant protection to rights holders that is not expressly provided, that interpretation might serve as the basis for a treaty-based challenge in a US court seeking similar protection. Even without such a development, some creative lawyer might try to make an argument, however tenuous, that the treaty's flexible language provides more protection than US law. I would have thought the US would have wanted to eliminate even the possibility of these kinds of suits by a simple statement that it considers the treaty to be non self-executing.

Regards,
Larry

--
Laurence R. Helfer
Associate Professor of Law
Loyola Law School
919 S. Albany Street
Los Angeles, CA 90015
Tel:  (213) 736-1467
Fax: (213) 380-3769
E-mail:  Larry.Helfer[_at_]lls.edu