International copyright: From a "bundle" of national copyright laws to a supranational code?

Journal of the Copyright Society of the U.S.A.

Volumn 47, Issue 1, 1999, Pages 265-288

  Ginsburg, Jane C ^a  

^a NONE

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EID: 0042415564     PISSN: 08863520     EISSN: None     Source Type: Journal    
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References (113)

1. A. HAMILTON, J. JAY, J. MADISON, THE FEDERALIST, No. 43, 279 (Modern Library ed. 1999).
2. During the period of the Articles of Confederation, the separate States were urged to pass copyright laws; all but Delaware did. See, "Resolution passed by the Colonial Congress, recommending the several States to secure to the authors or publishers of new books the copyright of such books," May 2, 1783, reprinted in COPYRIGHT ENACTMENTS OF THE UNITED STATES 11, 29 (Thorvald Solberg ed., 1906).
3. These piecemeal measures, however, proved inadequate, at least for entrepreneurial authors, like Noah Webster, who sought a nationwide audience. See, Noah Webster, Origin of the Copy-Right Laws in the United States, in A COLLECTION OF PAPERS ON POLITICAL, LITERARY AND MORAL SUBJECTS 173-78 (Burt Franklin reprint 1968) (1843).
4. 3 U.S. CONST., art. I, sec. 8, cl. 8.
5. After ratification of the Constitution, but before the new U.S. Congress enacted the first copyright law in 1790, authors sought nationwide coverage, by petitioning Congress for special protections. See, Proceedings in Congress During the Years 1789 and 1790, Relating to the First Patent and Copyright Laws, 22 J. PAT. OFF. SOC'Y. 243 (1940) (reproducing the text of the petitions).
6. See, e.g., Copyright Office Home Page, (visited Oct. 1, 1999) 〈http:// lcweb.loc.gov/copyright/fls/fl100.pdf〉 ("There is no such thing as 'international copyright' that will automatically protect an author's writings throughout the world.").
7. See, e.g., Jon Baumgarten, Primer on the Principles of International Copyright, in FOURTH ANNUAL U.S. COPYRIGHT OFFICE SPEAKS: CONTEMPORARY COPYRIGHT AND INTELLECTUAL PROPERTY ISSUES 470, 471 (1992) (Prentice-Hall Law & Business): "The term 'international copyright' is something of a misnomer, for neither a single code governing copyright protection across national borders, nor a unitary multi-national property right, exists. What does exist is a complex of copyright relations among sovereign states, each having its own copryight law applicable to acts within its territory." (emphasis in original).
8. See STEPHEN M. STEWART, INTERNATIONAL COPYRIGHT AND NEIGHBORING RIGHTS 41 (1983).
9. See STEPHEN P. LADAS, THE INTERNATIONAL PROTECTION OF LITERARY AND ARTISTIC PROPERTY 72 (1938). The Congress of Authors and Artists met three times (1858, 1861, and 1877) and each time adopted resolutions asking governments to join together in passing legislation for the international protection of authors. The resolutions they passed in 1858 were: That the principle of international recognition of copyright in favor of authors must be made part of the legislation of all civilized countries. This principle must be admitted regardless of reciprocity. The assimilation of foreign to national authors [national treatment] must be absolute and complete. Foreign authors should not be required to comply with any particular formalities for the recognition and protection of their rights, provided they have complied with the formalities required in the country where publication first took place. It is desirable that all countries adopt uniform legislation for the protection of literary and artistic works. Id. See also SAM RICKETSON, THE BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS: 1886-1986, 42-43 (1987) [hereinafter RICKETSON].
10. See STEPHEN P. LADAS, THE INTERNATIONAL PROTECTION OF LITERARY AND ARTISTIC PROPERTY 72 (1938). The Congress of Authors and Artists met three times (1858, 1861, and 1877) and each time adopted resolutions asking governments to join together in passing legislation for the international protection of authors. The resolutions they passed in 1858 were: That the principle of international recognition of copyright in favor of authors must be made part of the legislation of all civilized countries. This principle must be admitted regardless of reciprocity. The assimilation of foreign to national authors [national treatment] must be absolute and complete. Foreign authors should not be required to comply with any particular formalities for the recognition and protection of their rights, provided they have complied with the formalities required in the country where publication first took place. It is desirable that all countries adopt uniform legislation for the protection of literary and artistic works. Id. See also SAM RICKETSON, THE BERNE CONVENTION FOR THE PROTECTION OF LITERARY AND ARTISTIC WORKS: 1886-1986, 42-43 (1987) [hereinafter RICKETSON].
11. Professor Sam Ricketson divides the differences in ideology into two groups: the universalist, and the pragmatic view. While the universalists wished for a uniform law of copyright to be adopted either through a multilateral convention or through each country's adoption of uniform, general laws applicable to both nationals and foreigners alike, the pragmatists criticized them as unrealistic and utopian. The pragmatists argued that true universality would be impossible in the absence of agreement on the fundamental nature of authors' rights (whether grounded in moral or economic rights). The pragmatists thus focused on the need for compromise and advocated the adoption of a minimal universality to which the largest number possible could adhere. Ricketson underscores that the tension between these conflicting viewpoints strongly influenced the initial and subsequent development of the Berne Convention. The universalists have been responsible for the steady increase in measures to such an extent that the Berne Convention is sometimes viewed as an international code of copyright. On the other hand, the "modifying influence" of the pragmatists has ensured that these changes enjoyed the widest possible support; as a result, these measures often emerged in somewhat diluted form. See id. at 39-41.
12. The universalist countries generally included France, Switzerland and Belgium. See BERNE CONVENTION 90-92 (WIPO ed. 1986) (recording comments and positions of these countries).
13. See id. at 83-86.
14. For example, the participants granted each contracting state the right to establish conditions under which works could be freely reproduced in certain types of publications (i.e., scientific ones) and recognized the translation right for ten years only. See LADAS, supra note 8, at 79.
15. See Records of the Second International Conference for the Protection of Literary and Artistic Works, in BERNE CONVENTION, supra note 10, at 108.
16. See LADAS, supra note 8, at 80-81.
17. Among the amended provisions were those concerning translation rights, adaptations, the right of presentation of dramatic and dramatico-musical works, the protection of photographs and choreographic works, and the reproduction of articles in chrestomathies and in selections intended for instruction and the reproduction of articles of newspapers and periodicals. See LADAS, supra note 8, at 81.
18. Agreement on Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods, April 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, Legal Instrument -Results of the Uruguay Round, vol. 321, 33 I.L.M. 81 (1994).
19. WIPO Copyright Treaty, CRNR/DC/94 (adopted by the Conference, December 20, 1996).
20. See Berne Convention for the Protection of Literary and Artistic Works (1971 text)1161 U.N.T.S. 3 arts. 5.1, 5.3 [hereinafter Berne Conv.].
21. But see, e.g., 17 U.S.C. § 104A (Supp. IV 1998) (restoring copyright in non-U.S. Berne and WTO works whose copyrights expired due to failure to comply with U.S. formalities).
22. See Berne Conv. (1886 text), art. 4 in BERNE CONVENTION, supra note 10.
23. See id., arts. 2 & 3.
24. See id., art. 5.
25. For example, the exclusive recording right of musical works and the right of authors to authorize the reproduction and public performance of their work by means of a cinematograph were introduced by the Berlin Revision of 1908 (art. 13 and art. 14), the moral right to claim paternity of a work and the right to "object to any deformation, mutilation or other modification" of the work as well as the broadcasting right were introduced at the Rome Revision Conference of 1928 (arts. 6bis and 11bis), and the droit de suite was added at the Brussels Revision of 1948 (art. 14bis para. 1). The 1971 revision set forth the reproduction right, but also posed general terms under which member states could provide for exceptions to that right (arts. 9.1, 9.2) See BERNE CONVENTION, supra note 10.
26. For example, in 1989, when the U.S. adhered to the Berne Convention, it did not amend the 1976 Copyright Act to provide for the rights of attribution and integrity guaranteed by Berne Conv. Art. 6bis. Congress took the position that these rights already existed in the Copyright Act, or in other dispositions in the trademarks law or at common law. See H.R. REP No. 100-609, at 37 (stressing that then-Director-General of WIPO Arpad Bogsch endorsed the U.S. view that its pre-Berne adherence positive law satisfied art. 6bis). This assertion has prompted considerable skepticism, see, e.g., Adolf Dietz, The United States and Moral Rights: Idiosyncracy or Approximation? Observations on a Problematical Relationship Underlying United States Adherence to the Berne Convention, 142 R.I.D.A. 222 (Oct. 1989).
27. TRIPs does not, however, incorporate article 6bis of the Berne Convention (moral rights). See TRIPs art. 9.1.
28. Id. art. 10.
29. Id. art. 11.
30. Id. art. 13.
31. Compare TRIPs arts. 41 - 61 with Berne Convention art. 16.
32. WCT arts. 11, 12.
33. With the following important exception: art. 11 requires member states to protect against "the circumvention" of technological measures; it is not completely clear whether this text requires prohibition not only of direct acts of circumvention, but also of the manufacture and dissemination of circumvention devices. The U.S. and the E.U. have interpreted art. 11 in the latter sense. See 17 U.S.C. § 1201(b) (Supp. IV 1998); Amended Proposal for a European Parliament and Council Directive on the harmonisation of certain aspects of copyright and related rights in the Information Society (COM 1999 250 final 97/0359/COD) (May 21, 1999) [hereinafter Information Society Draft Directive], art. 6.2.
34. Council Directive of 14 May 1991 on the legal protection of computer programs, 91/250/EEC, O.J.E.C. L 122 [hereinafter Software Directive]; Council Directive of 19 November 1992 on the rental and lending right and on certain rights related to copyright in the field of intellectual property, 92/ 100/EEC, O.J.E.C. L. 346 [hereinafter Rental Right Directive]; Council Directive 93/83/EEC of 27 September 1993, on the coordination of certain rules concerning copyright and rights related to copyright applicable to satellite broadcasting and cable retransmissions, O.J.E.C. L. 248/15 [hereinafter Cable and Satellite Directive]; Council Directive 93/98/EEC of 20 October 1993 harmonizing the term of protection of copyright and certain related rights, O.J.E.C. L. 290/9 [hereinafter Duration Directive]; Directive 96/9/EC of the European parliament and of the Council of 11 March 1996 on the legal protection of databases, O.J.E.C. L. 77/20 [hereinafter Database Directive]. A "Directive" sets forth substantive rules that European Union Member States must transpose into their domestic laws. Member States need not incorporate the text of Directives verbatim (although they may), so long as the domestic law implements the substance. See generally, P.J.G. KAPTEYN & P. VERLOREN VAN THEMAAT, INTRODUCTION TO THE LAW OF THE EUROPEAN COMMUNITIES 193-97 (Laurence W. Gormley, ed. 2d ed. 1989).
35. Information Society Draft Directive, supra note 31.
36. See arts. 30. 336, 57(2), 100(a) of the EC Treaty (now arts. 28, 30, 47(2), 95 EC), 1997 O.J.E.C. (C340) 173.
37. See discussion supra, text at and note 18.
38. See art. 3(b) of the Treaty on European Union (now art. 5 EC) 1997 O.J.E.C. (C340) 145. On subsidiarity, see generally, George Bermann, Taking Subsidiarity Seriously: Federalism in the European Community and in the United States, 94 COLUM. L. REV. 331 (1994); George Bermann, Subsidiarity and the European Community, 17 HASTINGS INT'L & COMP. L. REV. 97 (1993).
39. See art. 3(b) of the Treaty on European Union (now art. 5 EC) 1997 O.J.E.C. (C340) 145. On subsidiarity, see generally, George Bermann, Taking Subsidiarity Seriously: Federalism in the European Community and in the United States, 94 COLUM. L. REV. 331 (1994); George Bermann, Subsidiarity and the European Community, 17 HASTINGS INT'L & COMP. L. REV. 97 (1993).
40. Software Directive, art. 1.3; Database Directive, art. 3.1.
41. Duration Directive, art. 6. The same cautionary note appeared in the Software Directive, art. 1.3, and the Database Directive, art. 3.1.
42. See, e.g., WILLIAM R. CORNISH, INTELLECTUAL PROPERTY 334-35 [¶ 10-18] (3d ed. 1996).
43. See, e.g., ANDRÉ LUCAS & HENRI-JACQUES LUCAS, PROPRIÉTÉ LITTÉRAIRE ET ARTISTIQUE ¶¶ 80-86. See also CORNISH, supra note 39, at ¶¶ 10-09 - 10-10, comparing British, "authors rights" countries, and EU concepts of originality.
44. See, e.g., ANDRÉ LUCAS & HENRI-JACQUES LUCAS, PROPRIÉTÉ LITTÉRAIRE ET ARTISTIQUE ¶¶ 80-86. See also CORNISH, supra note 39, at ¶¶ 10-09 - 10-10, comparing British, "authors rights" countries, and EU concepts of originality.
45. Cf. Gerhard Schricker, Farewell to the "Level of Creativity" (Schopfungshohe) in German Copyright Law, 26 I.I.C. 41, 46 (1995) (suggesting that EU standard preludes application of higher German "level of creativity" standard "for a growing number of types of work").
46. Software Directive, art. 2.3.
47. Rental Right Directive, art. 4.1.
48. Draft Information Society Directive, art. 2.
49. Id. art. 3.1. The language comes from the WCT, art. 8.
50. Draft Information Society Directive, art. 4.
51. Id. arts. 6, 7.
52. Id. arts. 5.2, 5.3
53. Id. arts. 5.2(a)(b)(b bis), 5.3(a).
54. See Berne Conv. art. 9.2. See Mihály Ficsor, The Spring 1997 Horace S. Manges Lecture: Copyright for the Digital Era: The WIPO "Internet" Treaties, 21 COLUM.-VLA J. L. & THE ARTS 197, 214-15 (1997).
55. Draft Directive, art. 5.4; the language paraphrases Berne Convention art. 9.2 and WCT, art. 10.
56. Software Directive, art. 5; Database Directive, art. 6.1; see also id., art. 8.1 (exception to sui generis right).
57. Software Directive, art. 6.1.
58. Information Society Directive, art. 5.1. The European Parliament amended this provision to require that the communication have been lawfully made (amendments 16 and 33), but the Commission rejected the amendment. See Amended Proposal, supra note 31, Explanatory Memorandum, 4.1.
59. See, e.g., HENRI DESBOIS et al, LES CONVENTIONS INTERNATIONALES DU DROIT D'AUTEUR ET DES DROITS VOISINS 216-21 (1976); RICKETSON, supra note 8, at 589.
60. See, e.g., HENRI DESBOIS et al, LES CONVENTIONS INTERNATIONALES DU DROIT D'AUTEUR ET DES DROITS VOISINS 216-21 (1976); RICKETSON, supra note 8, at 589.
61. But see Sam Ricketson, The 1992 Horace S. Manges Lecture: People or Machines? The Berne Convention and the Changing Concept of Authorship, 16 COLUM.-VLA J. L. & THE ARTS 1 (1991) (contending that the Berne Convention implicitly designates the human creator, rather than juridical persons, as the author and initial copyright owner).
62. Berne Conv., art. 15.1.
63. See Jane C. Ginsburg, Surveying the Borders of Copyright, 41 J. COPYR. SOC'Y. 322, 327 (1994).
64. TRIPs, art. 10; WCT, art. 5 (databases).
65. See discussion supra, text at notes 36-39. Query whether the EU's "author's own intellectual creation" standard (emphasis supplied) is higher than the TRIPs-WCT "intellectual creation" standard.
66. TRIPs, art. 9.2; WCT art. 2.
67. th Cir. 1997)("taxonomy," system of classifying dental procedures, held not a "method of operation").
68. 63 Compare Berne Conv. arts. 10 (certain exceptions), 10bis (certain exceptions), 11 (certain public performance rights), 11bis (broadcasting rights), 11ter (certain public performance rights) with TRIPs art. 13 (exceptions); WCT arts. 8 (right of communication to the public); 10 (exceptions and limitations).
69. See TRIPs, art. 9.1.
70. See TRIPs, art. 64 (dispute settlement). A World Trade Organization dispute resolution panel announced its decision on June 15, 2000 in a dispute resolution proceeding brought by the European Union regarding 17 U.S.C. § 110(5)(B) (Supp. IV 1998), which exempts certain commercial establishments from liability for public performances by means of performing works by radio and television. WT/DS160/R. The Panel determined that the U.S. exemption exceeded the standards imposed by TRIPs art. 13 as to permissible exceptions and limitations, and therefore recommended that the Dispute Settlement Body request the United States to bring subparagraph (b) of Section 110(5) into conformity with its obligations under the TRIPs Agreement. Art. 33 of the Berne Convention provides for intergovernmental resort to the International Court of Justice, should one country of the Union object to another's interpretation or application of the Convention's provision, but Art. 33 also permits a Union member, upon ratifying to "declare that it does not consider itself bound" by that provision. 22 of the 140 Berne Union members have reserved on art. 33. See Contracting Parties of Treaties Administered by WIPO (visited Sept. 29, 1999) 〈http://www.wipo.org/eng/ratific/e-berne.htm〉. It appears that no ICJ proceeding has been brought pursuant to art. 33. See International Court of Justice: List of all Decisions and Advisory Opinions brought before the Court since 1946 (visited Sept. 29, 1999) 〈http://www.icj-cij.org/icjwww/idecisions.htm〉.
71. See TRIPs, art. 64 (dispute settlement). A World Trade Organization dispute resolution panel announced its decision on June 15, 2000 in a dispute resolution proceeding brought by the European Union regarding 17 U.S.C. § 110(5)(B) (Supp. IV 1998), which exempts certain commercial establishments from liability for public performances by means of performing works by radio and television. WT/DS160/R. The Panel determined that the U.S. exemption exceeded the standards imposed by TRIPs art. 13 as to permissible exceptions and limitations, and therefore recommended that the Dispute Settlement Body request the United States to bring subparagraph (b) of Section 110(5) into conformity with its obligations under the TRIPs Agreement. Art. 33 of the Berne Convention provides for intergovernmental resort to the International Court of Justice, should one country of the Union object to another's interpretation or application of the Convention's provision, but Art. 33 also permits a Union member, upon ratifying to "declare that it does not consider itself bound" by that provision. 22 of the 140 Berne Union members have reserved on art. 33. See Contracting Parties of Treaties Administered by WIPO (visited Sept. 29, 1999) 〈http://www.wipo.org/eng/ratific/e-berne.htm〉. It appears that no ICJ proceeding has been brought pursuant to art. 33. See International Court of Justice: List of all Decisions and Advisory Opinions brought before the Court since 1946 (visited Sept. 29, 1999) 〈http://www.icj-cij.org/icjwww/idecisions.htm〉.
72. See TRIPs, art. 6; WCT, art. 6.2.
73. See TRIPs, art. 3; Berne Conv., art. 19.
74. See discussion supra, text at notes 47-53.
75. See Duration Directive, art. 9; Recital 21.
76. See Software Directive, art. 2.1; Database Directive, art. 4.1.
77. See Software Directive, art. 2.1; Database Directive, art. 4.2; Duration Directive, arts. 1.2, 1.4.
78. See Rental Right Directive, art. 2.2; Satellite Directive, art. 1.5.
79. Compare Federal Republic of Germany, Copyright Law of 1965 (as amended), art. 8.1 (joint works are those whose "respective contributions cannot be separately identified"); U.K., 1988 Copyright Designs and Patents Act, art. 10(1) ("contribution of each author is not distinct from that of the other author or authors") with Belgium, Copyright Law of June 30, 1994, art. 5.1 (joint works contributions may be "individualized"); France, Code of Intellectual Property, art. L-113-2.1 (joint work is "a work in the creation of which more than one natural person has participated").
80. See Duration Directive, art. 1.1 (single authored work's duration), 1.2 (joint work's duration), 1.4 (collective work's duration).
81. See Software Directive, art. 1.2, Duration Directive, art. 1.4; Database Directive, art. 4.1.
82. See Rental Right Directive, art. 1.6.
83. Choosing a forum in State A does not necessarily mean that A's law will apply. The international private law rules of the forum will determine the applicable law.
84. See, e.g., France, Judgment of May 28, 1991, Cass. Civ. 1re, JCP II 21731, note Françon (foreign authors enjoy moral rights in France, regardless of whether authors enjoyed or waived moral rights in the work's country of origin).
85. See, e.g., Bartsch v. Metro-Goldwyn-Mayer, Inc., 391 F.2d 150 (2d Cir. 1968).
86. See German copyright law, art. 31; Michael Walter, La liberté contractuelle dans le domaine du droit d'auteur et des conflits de lois, 87 R.I.D.A. 45, 71-83 (1976).
87. See German copyright law, art. 31; Michael Walter, La liberté contractuelle dans le domaine du droit d'auteur et des conflits de lois, 87 R.I.D.A. 45, 71-83 (1976).
88. See Corcovado Music Corp. v. Hollis Music, Inc., 981 F.2d 679 (2d Cir. 1993).
89. See supra note 39. This hypothetical is based on Bridgeman Art Library, Ltd. v. Corel Corp., 36 F.Supp. 2d 191 (S.D.N.Y. 1999).
90. See Bridgeman Art, supra; Itar Tass Russian News Agency v. Russian Kurier, Inc., 153 F.3d 82 (2d Cir. 1998).
91. Cf. Turtur v. Rothschild Registry Int'l., Inc., 26 F.3d 304 (2d Cir. 1994); Nedlloyd Lines BV v. Superior Court, 834 P.2d 1148 (Cal. 1992) (both assuming that parties to the contract may submit contract-related tort claims to the law chosen to govern the contract).
92. 85 126 F.3d 365 (2d Cir. 1997).
93. Favoring such a rule, see, e.g., André Lucas, Aspects de droit international privé de la protection d'oeuvres et d'objets de droits connexes transmis par réseaux numériques mondiaux (visited Oct. 4, 1999) 〈http://www.wipo.org/fre/ main.htm〉 doc. no. GCPIC/1; JEAN-SYLVESTRE BERGÉ, LA PROTECTION INTERNATIONALE ET COMMUNAUTAIRE DU DROIT D'AUTEUR: ESSAIE D'UNE ANALYSE CONFLICTUELLE 320-22 (1996).
94. See, e.g., Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F.3d 82 (2d Cir. 1998)(in action alleging infringement in U.S, U.S. court applied Russian law to determine initial ownership of copyright in work first published in Russia, by a Russian publisher, and written by Russian authors).
95. The same result might be achieved through resort to a different point of attachment, for example, country of first publication. But that country may not always be easy to identify, especially if first publication occurs over the Internet. See Jane C. Ginsburg, The Private International Law of Copyright in an Era of Technological Change, 1998 RECUEIL DES COURS DE L'ACADÉMIE INTERNATIONALE DE LA HAYE part 273, 239-405 (1999) [hereinafter Ginsburg, Hague Lectures] 267-71(discussing the problem of discerning the country of first publication).
96. See generally id., Chapter 3 (discussing theories and cases).
97. See, e.g., Lucas, supra note 86 (laws of each country of receipt should apply to multinational copyright infringement committed over digital networks).
98. See, e.g., Louknitsky v. Louknitsky, 266 P.2d 910 (Cal. Ct. App. 1954)(presuming similarity of Chinese marital property law to California's); Leary v. Gledhill, 84 A.2d 725 (N.J. 1951). But cf. Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985) (declining to apply Kansas law when that law conflicted with that of other jurisdictions, and Kansas had little connection to either the class action plaintiffs or the suit's subject matter); Castano v. American Tobacco Co., 84 F.3d 734, 740-44 (5th Cir. 1996) (decertifying multistate class action because the district court failed adequately to analyze possible variations in state law).
99. See generally Ginsburg, Hague Lectures, supra note 88, at 336-38.
100. This is usually the country of origin, but it could also be the one whose law is designated in the employment or commissioned work contract.
101. See discussion supra, text and notes 86-88.
102. A different analysis may be warranted when the compensation issue turns not on copyright ownership, but authorship status, cf. discussion of moral rights, infra. For example, the European Rental Rights Directive, Council Directive 92/100/EEC, O.J.E.C. No. L 346/61, art. 4.1, provides authors and performers an inalienable right to "equitable remuneration" for rentals of phonograms and copies of audiovisual works. Thus, no matter who owns the copyright in the motion picture or sound recording, the authors and performers must be compensated for the exploitation by means of rental. Similarly, private copying levies on the media and/or machinery of copying often prescribe the division of the collected levies among authors, performers, and producers. See, e.g., 17 U.S.C. § 1006(b)(1)(2) (1994) (designating distribution of royalties from levy on digital audio recording devices and media, 40% of "sound recordings fund" to "featured performers"; 50% of "musical works fund" to "writers"); France, Code de la propriété intellectuelle, art.L.311-7 (setting forth division of private copying compensation among authors, producers, and performers). Moreover, the French law specifies that the "author" to be compensated for private copying is the author "within the meaning of the [French] code," id. See Jean-Sylvestre Bergé, La loi applicable à la circulation des oeuvres de l'esprit sur les réseau numériques; Le point de vue d'un juriste français; 33-34 (report submitted to the Ministry of Culture and Communication, 1999) (on file with author). A choice of law rule governing copyright ownership thus would not address a foreign author's or performer's standing to invoke the benefits of status-specific local measures. Rather, where a copyright or performer's rights treaty exists between the foreign claimant's country and the country of exploitation, the general principle of non-discrimination against foreign authors or performers should govern, and the foreign claimant would enjoy the status of a local author or performer.
103. See discussion supra, text at and notes 25, 69. The WCT art. 12 requirement that member States protect "rights management information," including information identifying the author of the work, may strengthen the Berne art. 6bis protection of the author's right of attribution; however, copyright owners are not obliged to add rights management information.
104. Berne Conv., art. 6bis.
105. See, e.g., Pierre Bourel, Du rattachement de quelques délits spéciaux en droit international privé, 214 RECUEIL DES COURS DE L'ACADÉMIE DE DROIT INTERNATIONAL DE LA HAYE 251(1989). Not surprisingly, perhaps, in France, violations of moral rights are gauged subjectively, rather than with reference to public perception of the author's honor or reputation, see ANDRÉ LUCAS & HENRI-JACQUES LUCAS, TRAITÉ DE LA PROPRIÉTÉ LITTÉRAIRE ET ARTISTIQUE 332 (1994).
106. See, e.g., Pierre Bourel, Du rattachement de quelques délits spéciaux en droit international privé, 214 RECUEIL DES COURS DE L'ACADÉMIE DE DROIT INTERNATIONAL DE LA HAYE 251(1989). Not surprisingly, perhaps, in France, violations of moral rights are gauged subjectively, rather than with reference to public perception of the author's honor or reputation, see ANDRÉ LUCAS & HENRI-JACQUES LUCAS, TRAITÉ DE LA PROPRIÉTÉ LITTÉRAIRE ET ARTISTIQUE 332 (1994).
107. See, e.g., Schlegel v. Ottumwa Courier, 585 N.W.2d 217 (Iowa 1998); Urban v. Dollar Bank, 725 A.2d 815 (Pa. Super. Ct. 1999).
108. Compare 17 U.S.C. § 107 (1994) (fair use) with Draft Information Society Directive, art. 5.2 - 3 (list of authorized exceptions).
109. See Jane C. Ginsburg, Copyright or "Infograb"? Comment on General Report on Limitations Found Outside Copyright, in ALAI STUDY DAYS 55 (Libby Baulsch et al. eds., 1999).
110. See 17 U.S.C. § 110(5)(B) (Supp. IV 1998), and WTO dispute resolution procedure, discussed supra note 65.
111. German copyright law, art. 46.
112. Draft Information Society Directive, art. 5.3(d).
113. Compare German copyright law, art. 49.1; France CPI, art. L-122-5, 3o(b) (both specifying revue de presse exceptions) with U.K. CDPA, art. 30; Belgian copyright law, arts. 21-22 (neither specifying a revue de presse exception).