Re: Self-Executing Status of WIPO Copyright Treaty

On Mon, 21 Jun 1999, Larry Helfer <larry.helfer[_at_]lls.edu> wrote:
>
> 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?
> >
> > 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
>
> 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 I point out in my response to Seth, there are other complications.

   FIRST, art. 1 of the WIPO Copyright Treaty, if self-executing,    would arguably override sect. 104(c) of the Copyright Act.

   SECOND, there is no question that most courts would hang their    hats on sect. 104(c) in precluding Berne self-execution or    mooting it.

   QUAERE whether they would not try to boot-strap constructions on    sect. 104(c) to reach similar conclusions regarding the WIPO    treaties?

   THIRD, not as much of the language of the WIPO treaties is as    clearly susceptible of self-execution as is Berne language.

   CAVEAT: Only foreign, treaty claimants could base claims on    treaty texts, e.g., an Irish composer invoking Berne v. sect. 110(5).

   BOTTOM LINE: I'd not bet on the success of the treaty claimant,    however creative his or her lawyer and however blessed with luck.

   Cordially, Paul

Paul Geller
http://www-bcf.usc.edu/~pgeller/
<pgeller[_at_]law.usc.edu> Received on Tue Jun 22 1999 - 16:52:34 GMT