Re: Self-Executing Status of WIPO Copyright Treaty

On Sat, 19 Jun 1999, Seth Greenstein <sethdg[_at_]concentric.net> wrote:
>
> The WIPO treaty is not self-executing in the U.S. It was the judgment
> of certain government authorities that legislation was needed to
> implement the treaties, which provisions were included in the DMCA.
> Even so, the U.S. has to deposit the instruments of ratification of
> the two treaties with WIPO. I have heard that the US Department of
> State takes the position that the instruments cannot be deposited at
> least until certain study amendments required under the DMCA have been
> completed, within the two-year time frame provided under that Act.

Dear Seth,

This is a very interesting contribution. Surely, the question of depositing instruments of ratification must be a ministerial act as to which the State Department would have no power of discretion. Otherwise, the constitutional act of ratifying treaties -- placed solely in the Senate -- could be easily trumped by an Executive Branch which, for whatever reason, decides not to deposit the instruments of ratification until it suits the Executive Branch. This is particularly important since the veto power is expressly withdrawn from the President in the ratification situation. He need not consent and his (or the State Department's) failure to consent surely cannot be used to effectively veto an act of ratification.

And the nature, or even the existence of implementing legislation cannot matter. WIPO will accept instruments of ratification even in the absence of any implementation. As you know, that is only required once the treaties go into force.

Consider the well-known question of moral rights under the Berne Convention. There are those who believe that the US has never fully implemented article 6bis of Berne. If the State Department in 1989 had been of that view, would they have been justified in delaying the deposit of instruments following the Senate's vote to ratify Berne? I think not; otherwise the Executive Branch would be second-guessing the Senate.

I would even go so far as to say that even if an Act purporting to implement a treaty were to include something as specific as a direction to the State Department that deposit should not occur until two years after a vote on ratification, there would still be no leeway to delay. If the Senate still votes to ratify -- through a separate vote -- that has to be respected as an act of Constitutional significance. Whatever else the Congress may done in the course of passing ordinary federal legislation cannot be used to lessen the significance of their act of ratifying a treaty. The Senate is not the Congress. The consent of the House and the President is required for ordinary legislation, but not for ratification. I simply cannot believe that any reason that anyone could devise would ever be sufficient to halt the process once the Senate has voted.

I have not researched this at all and am only relying on my now rapidly dimming memories of working on the Hill. Have I missed something relevant?

Best regards,

Darrell

Darrell Panethiere
<darrell.panethiere[_at_]ifpi.org> Received on Tue Jun 22 1999 - 13:32:41 GMT