The International Framework of Copyright Law - Revision history

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	The multilateral agreements we have just described contain the primary provisions that limit the freedom of each country in shaping its own copyright laws. But some countries also belong to regional organizations that have the power to influence the copyright laws of their members.		The multilateral agreements we have just described contain the primary provisions that limit the freedom of each country in shaping its own copyright laws. But some countries also belong to regional organizations that have the power to influence the copyright laws of their members.

	The most important such regional organization is the '''European Union''', commonly known as the '''EU'''. (A map showing the current membership of the EU, as well as the candidates for admission to the EU, is available [http://www.ezilon.com/european_maps.htm here].) Beginning in 1991, the EU has adopted several directives relating to copyright law. (A directive obliges the member countries to bring their laws into conformity with its requirements by a particular date, but leaves to each country's discretion some flexibility in achieving that goal.) For example, the Software Directive required member countries to grant copyright protection to the authors of software programs, regardless of how creative those programs are. The [http://en.wikipedia.org/wiki/Rental_Directive Rental Rights Directive~~((.link_green))~~] required member countries to recognize "a right to authorize or prohibit the rental and lending of originals and copies of copyright works...." The [http://en.wikipedia.org/wiki/Copyright_Duration_Directive_(93/98/EEC) Copyright Duration Directive] required member countries to extend copyright protection to the life of the author plus 70 years (20 years more than the term required by the Berne Convention). The controversial [http://en.wikipedia.org/wiki/Directive_on_the_harmonisation_of_certain_aspects_of_copyright_and_related_rights_in_the_information_society Information Society Directive~~((.link_green))~~] (also sometimes known as the Copyright Directive) was adopted in 2001 to implement the WCT, discussed above. Finally, the [http://en.wikipedia.org/wiki/Resale_Rights_Directive Resale Rights Directive~~((.link_green))~~] obliges member countries to grant the creators of original works of art a right to remuneration when those works are resold.		The most important such regional organization is the '''European Union''', commonly known as the '''EU'''. (A map showing the current membership of the EU, as well as the candidates for admission to the EU, is available [http://www.ezilon.com/european_maps.htm here].) Beginning in 1991, the EU has adopted several directives relating to copyright law. (A directive obliges the member countries to bring their laws into conformity with its requirements by a particular date, but leaves to each country's discretion some flexibility in achieving that goal.) For example, the Software Directive required member countries to grant copyright protection to the authors of software programs, regardless of how creative those programs are. The [http://en.wikipedia.org/wiki/Rental_Directive <span style="color:green;">Rental Rights Directive</span>] required member countries to recognize "a right to authorize or prohibit the rental and lending of originals and copies of copyright works...." The [http://en.wikipedia.org/wiki/Copyright_Duration_Directive_(93/98/EEC) Copyright Duration Directive] required member countries to extend copyright protection to the life of the author plus 70 years (20 years more than the term required by the Berne Convention). The controversial [http://en.wikipedia.org/wiki/Directive_on_the_harmonisation_of_certain_aspects_of_copyright_and_related_rights_in_the_information_society <span style="color:green;">Information Society Directive</span>] (also sometimes known as the Copyright Directive) was adopted in 2001 to implement the WCT, discussed above. Finally, the [http://en.wikipedia.org/wiki/Resale_Rights_Directive <span style="color:green;">Resale Rights Directive</span>] obliges member countries to grant the creators of original works of art a right to remuneration when those works are resold.

	Equally important for many African countries is the revised [http://www.oapi.wipo.net/doc/en/bangui_agreement.pdf Bangui Agreement(] (executed in 1999; effective in 2002), which governs the member countries of the [http://www.oapi.wipo.net/fr/OAPI/index.htm '''African Intellectual Property Organization (OAPI)'''] ('''Benin, Burkina Faso, Cameroon, Central Africa, Congo, Cote d'Ivoire, Equatorial Guinea, Gabon, Guinea, Guinea Bissau, Mali, Mauritania, Niger, Senegal, Chad, and Togo'''). Articles 8 and 10 of Annex VII of the Agreement set forth an especially generous list of moral rights (reflecting its origins in French copyright law), while Article 9 sets forth a similarly generous list of economic rights, including the rental right. Articles 11 through 21 then carve out of those rights a long list of exceptions and limitations.		Equally important for many African countries is the revised [http://www.oapi.wipo.net/doc/en/bangui_agreement.pdf Bangui Agreement(] (executed in 1999; effective in 2002), which governs the member countries of the [http://www.oapi.wipo.net/fr/OAPI/index.htm '''African Intellectual Property Organization (OAPI)'''] ('''Benin, Burkina Faso, Cameroon, Central Africa, Congo, Cote d'Ivoire, Equatorial Guinea, Gabon, Guinea, Guinea Bissau, Mali, Mauritania, Niger, Senegal, Chad, and Togo'''). Articles 8 and 10 of Annex VII of the Agreement set forth an especially generous list of moral rights (reflecting its origins in French copyright law), while Article 9 sets forth a similarly generous list of economic rights, including the rental right. Articles 11 through 21 then carve out of those rights a long list of exceptions and limitations.

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	FTAs and BITs are highly controversial. Many scholars and representatives of developing countries regard them as abuses of the power of developed countries. Opponents of proposed FTAs or BITs have sometimes been able to prevent their adoption or modify them.		FTAs and BITs are highly controversial. Many scholars and representatives of developing countries regard them as abuses of the power of developed countries. Opponents of proposed FTAs or BITs have sometimes been able to prevent their adoption or modify them.

	~~Click here for more [[Information on FTAs]].~~

	===The Three-Step Test===		===The Three-Step Test===

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Tfisher at 14:57, 24 January 2013

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	The Berne Convention does not contain an effective enforcement mechanism. This means that member states have little power to punish another state that does not comply with the Berne Convention's guidelines. As we will see later, this situation partially changed for the members of the Berne Convention that also joined the WTO.		The Berne Convention does not contain an effective enforcement mechanism. This means that member states have little power to punish another state that does not comply with the Berne Convention's guidelines. As we will see later, this situation partially changed for the members of the Berne Convention that also joined the WTO.

	To learn more about the Convention you may [http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html read its text] or consult a [[brief discussion of the history of the Berne Convention]].		To learn more about the Convention you may [http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html read its text] or consult a brief discussion of the history of the [[Berne Convention]].

	====Universal Copyright Convention====		====Universal Copyright Convention====

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	Each of the six agreements was negotiated within - and is now administered by - an international organization. Four of the six are managed by the World Intellectual Property Organization (WIPO); one by the United Nations Educational, Scientific and Cultural Organization (UNESCO); and one by the World Trade Organization (WTO).		Each of the six agreements was negotiated within - and is now administered by - an international organization. Four of the six are managed by the World Intellectual Property Organization (WIPO); one by the United Nations Educational, Scientific and Cultural Organization (UNESCO); and one by the World Trade Organization (WTO).

	The six agreements have been created and implemented in similar, though not identical, ways. Typically, the process begins when representatives of countries think that there should be international standards governing a set of issues. They enter into negotiations, which can last several years. During the negotiations, draft provisions are presented to the delegations of each country, which then discuss them and may propose amendments to their content in order to reach a consensus. This "consensus" may reflect genuine agreement among all of the participating countries that the proposed treaty is desirable, or it may result from pressure exerted by more powerful countries upon less powerful countries. Once consensus has been reached, the countries conclude the treaty by ~~'''~~signing~~'''~~ it. Thereafter, the governments of the participating countries ratify the treaty, whereupon it enters into force. Countries that did not sign the treaty when it was initially concluded may join the treaty later by accession.		The six agreements have been created and implemented in similar, though not identical, ways. Typically, the process begins when representatives of countries think that there should be international standards governing a set of issues. They enter into negotiations, which can last several years. During the negotiations, draft provisions are presented to the delegations of each country, which then discuss them and may propose amendments to their content in order to reach a consensus. This "consensus" may reflect genuine agreement among all of the participating countries that the proposed treaty is desirable, or it may result from pressure exerted by more powerful countries upon less powerful countries. Once consensus has been reached, the countries conclude the treaty by signing it. Thereafter, the governments of the participating countries ratify the treaty, whereupon it enters into force. Countries that did not sign the treaty when it was initially concluded may join the treaty later by accession.

	In many countries -- especially those that follow the civil-law tradition -- treaties are regarded as "self-executing." In other words, once they are ratified, private parties can rely on them and, if necessary, bring lawsuits against other private parties for violations of the treaties' provisions. However, in other countries -- especially those influenced by the British or Scandinavian constitutional traditions -- treaties lack this self-executing authority. Instead, the national legislatures must adopt statutes implementing them, after which private parties rely on the terms of the implementing legislation, rather than on the terms of the treaties themselves.		In many countries -- especially those that follow the civil-law tradition -- treaties are regarded as "self-executing." In other words, once they are ratified, private parties can rely on them and, if necessary, bring lawsuits against other private parties for violations of the treaties' provisions. However, in other countries -- especially those influenced by the British or Scandinavian constitutional traditions -- treaties lack this self-executing authority. Instead, the national legislatures must adopt statutes implementing them, after which private parties rely on the terms of the implementing legislation, rather than on the terms of the treaties themselves.
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	The Berne Convention does not contain an effective enforcement mechanism. This means that member states have little power to punish another state that does not comply with the Berne Convention's guidelines. As we will see later, this situation partially changed for the members of the Berne Convention that also joined the WTO.		The Berne Convention does not contain an effective enforcement mechanism. This means that member states have little power to punish another state that does not comply with the Berne Convention's guidelines. As we will see later, this situation partially changed for the members of the Berne Convention that also joined the WTO.

	To learn more about the Convention you may [http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html read its text~~((.link_red))~~] or consult a brief discussion of the history of the [[Berne Convention]].		To learn more about the Convention you may [http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html read its text] or consult a [[brief discussion of the history of the Berne Convention]].

	====Universal Copyright Convention====		====Universal Copyright Convention====

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	None of the six treaties pertaining to copyright law contains a comprehensive set of rules or standards for a copyright system. Rather, each one requires member countries to deal with particular issues in particular ways, but leaves to the member countries considerable discretion in implementing its requirements.		None of the six treaties pertaining to copyright law contains a comprehensive set of rules or standards for a copyright system. Rather, each one requires member countries to deal with particular issues in particular ways, but leaves to the member countries considerable discretion in implementing its requirements.

	~~Click here for more on the [[stages of an international agreement]].~~

	Set forth below are brief descriptions of the six major treaties.		Set forth below are brief descriptions of the six major treaties.
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	When the Berne Convention was revised most recently in Paris in 1971, the signatory countries added an [http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P410_75777 Appendix], which contains special provisions concerning developing countries. In particular, developing countries may, for certain works and under certain conditions, depart from the minimum standards of protection with regard to the right of translation and the right of reproduction of copyrighted works. More specifically, the Appendix permits developing countries to grant non-exclusive and non-transferable compulsory licenses to translate works for the purpose of teaching, scholarship or research, and to reproduce works for use in connection with systematic instructional activities.		When the Berne Convention was revised most recently in Paris in 1971, the signatory countries added an [http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P410_75777 Appendix], which contains special provisions concerning developing countries. In particular, developing countries may, for certain works and under certain conditions, depart from the minimum standards of protection with regard to the right of translation and the right of reproduction of copyrighted works. More specifically, the Appendix permits developing countries to grant non-exclusive and non-transferable compulsory licenses to translate works for the purpose of teaching, scholarship or research, and to reproduce works for use in connection with systematic instructional activities.

	While the Berne Convention outlines broad standards for copyright protection, it mandates few specific rules. As a result, the legislature in each member country enjoys considerable flexibility in implementing its requirements. For example, in the Berne Convention Implementation Act of 1988, the U.S. Congress adopted a “minimalist” approach to implementation, making only those changes to copyright law that were ~~absolutely necessary~~ to qualify for membership.		While the Berne Convention outlines broad standards for copyright protection, it mandates few specific rules. As a result, the legislature in each member country enjoys considerable flexibility in implementing its requirements. For example, in the Berne Convention Implementation Act of 1988, the U.S. Congress adopted a “minimalist” approach to implementation, making only those changes to copyright law that were essential to qualify for membership.

	The Berne Convention does not contain an enforcement mechanism. This means that member states have little power to punish another state that does not comply with the Berne Convention's guidelines. As we will see later, this situation partially changed for the members of the Berne Convention that also joined the WTO.		The Berne Convention does not contain an effective enforcement mechanism. This means that member states have little power to punish another state that does not comply with the Berne Convention's guidelines. As we will see later, this situation partially changed for the members of the Berne Convention that also joined the WTO.

	To learn more about the Convention you may [http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html read its text((.link_red))] or consult a brief discussion of the history of the [[Berne Convention]].		To learn more about the Convention you may [http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html read its text((.link_red))] or consult a brief discussion of the history of the [[Berne Convention]].

Tfisher at 14:44, 24 January 2013

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	Each country in the world has its own set of copyright laws. However, the flexibility that most countries enjoy in adjusting and enforcing their own laws is limited by a set of international treaties. Why do we need any international management of this field? There are two traditional answers to this question.		Each country in the world has its own set of copyright laws. However, the flexibility that most countries enjoy in adjusting and enforcing their own laws is limited by a set of international treaties. Why do we need any international management of this field? There are two traditional answers to this question.

	First, without some international standardization, nations might enact legislation that protects their own citizens while leaving foreigners vulnerable. Such discrimination was common prior to international regulation. As copyright owners become increasingly interested in global protection for their ~~creation~~, mutual recognition on fair terms of rights across borders becomes ever more important.		First, without some international standardization, nations might enact legislation that protects their own citizens while leaving foreigners vulnerable. Such discrimination was common prior to international regulation. As copyright owners become increasingly interested in global protection for their creations, mutual recognition on fair terms of rights across borders becomes ever more important.

	Second, some copyright holders believe that developing nations would not adopt adequate copyright protections unless forced to do so by treaty. Representatives of developing nations strongly dispute this argument.		Second, some copyright holders believe that developing nations would not adopt adequate copyright protections unless forced to do so by treaty. Representatives of developing nations strongly dispute this argument.
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	== International Instruments ==		== International Instruments ==

	The simplest way to achieve these goals would be a single treaty signed by all countries. Unfortunately, the current situation is more complex. Instead of one treaty, we now have six major ~~'''~~multilateral~~'''~~ agreements, each with a different set of member countries.		The simplest way to achieve these goals would be a single treaty signed by all countries. Unfortunately, the current situation is more complex. Instead of one treaty, we now have six major multilateral agreements, each with a different set of member countries.

	Each of the six agreements was negotiated within - and is now administered by - an international organization. Four of the six are managed by the World Intellectual Property Organization (WIPO); one by the United Nations Educational, Scientific and Cultural Organization (UNESCO); and one by the World Trade Organization (WTO).		Each of the six agreements was negotiated within - and is now administered by - an international organization. Four of the six are managed by the World Intellectual Property Organization (WIPO); one by the United Nations Educational, Scientific and Cultural Organization (UNESCO); and one by the World Trade Organization (WTO).

	The six agreements have been created and implemented in similar, though not identical, ways. Typically, the process begins when representatives of countries think that there should be international standards governing a set of issues. They enter into ~~'''~~negotiations~~'''~~, which can last several years. During the negotiations, draft provisions are presented to the delegations of each country, which then discuss them and may propose amendments to their content in order to reach a consensus. This "consensus" may reflect genuine agreement among all of the participating countries that the proposed treaty is desirable, or it may result from pressure exerted by more powerful countries upon less powerful countries. Once consensus has been reached, the countries conclude the treaty by '''signing''' it. Thereafter, the governments of the participating countries ~~'''~~ratify~~'''~~ the treaty, whereupon it ~~'''~~enters into force~~'''~~. Countries that did not sign the treaty when it was initially concluded may join the treaty later by ~~'''~~accession~~'''~~.		The six agreements have been created and implemented in similar, though not identical, ways. Typically, the process begins when representatives of countries think that there should be international standards governing a set of issues. They enter into negotiations, which can last several years. During the negotiations, draft provisions are presented to the delegations of each country, which then discuss them and may propose amendments to their content in order to reach a consensus. This "consensus" may reflect genuine agreement among all of the participating countries that the proposed treaty is desirable, or it may result from pressure exerted by more powerful countries upon less powerful countries. Once consensus has been reached, the countries conclude the treaty by '''signing''' it. Thereafter, the governments of the participating countries ratify the treaty, whereupon it enters into force. Countries that did not sign the treaty when it was initially concluded may join the treaty later by accession.

	In many countries -- especially those that follow the civil-law tradition -- treaties are regarded as "self-executing." In other words, once they are ratified, private parties can rely on them and, if necessary, bring lawsuits against other private parties for violations of the treaties' provisions. However, in other countries -- especially those influenced by the British or Scandinavian constitutional traditions -- treaties lack this self-executing authority. Instead, the national legislatures must adopt statutes implementing them, after which private parties rely on the terms of the implementing legislation, rather than on the terms of the treaties themselves.		In many countries -- especially those that follow the civil-law tradition -- treaties are regarded as "self-executing." In other words, once they are ratified, private parties can rely on them and, if necessary, bring lawsuits against other private parties for violations of the treaties' provisions. However, in other countries -- especially those influenced by the British or Scandinavian constitutional traditions -- treaties lack this self-executing authority. Instead, the national legislatures must adopt statutes implementing them, after which private parties rely on the terms of the implementing legislation, rather than on the terms of the treaties themselves.
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	====Berne Convention====		====Berne Convention====

	In 1886 ten European states signed the Berne Convention for the Protection of Literary and Artistic Works (referred to hereafter as the "Berne Convention") in order to reduce confusion about international copyright law. Since then, a total of 164 countries have joined the Berne Convention. However, there have been several revisions of the Berne Convention, and not all countries have ratified the most recent version. Any nation is permitted to join. You can check to see [http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=15 if your country is a member of the Berne Convention by consulting this link]. Below is a map showing which countries ~~are currently~~ members.		In 1886 ten European states signed the Berne Convention for the Protection of Literary and Artistic Works (referred to hereafter as the "Berne Convention") in order to reduce confusion about international copyright law. Since then, a total of 164 countries have joined the Berne Convention. However, there have been several revisions of the Berne Convention, and not all countries have ratified the most recent version. Any nation is permitted to join. You can check to see [http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=15 if your country is a member of the Berne Convention by consulting this link]. Below is a map showing which countries were members as of 2010; not much has changed since.

	<div style="border: 1px dashed grey; padding: .5em 1em; margin: 3px 3px 1em 3px; width: 721px;">		<div style="border: 1px dashed grey; padding: .5em 1em; margin: 3px 3px 1em 3px; width: 721px;">
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	The third is the principle of “automatic protection.” This principle forbids member countries from requiring persons from other Berne Convention member countries to undergo legal formalities as a prerequisite for copyright protection. (They may impose such requirements on their own citizens, but usually do not.) The effect of this principle is that the Bolivian author of a novel doesn’t have to register or declare her novel in Ghana, India, Indonesia or any other member state of the Berne Convention; her novel will be automatically protected in all of these countries from the moment it is written.		The third is the principle of “automatic protection.” This principle forbids member countries from requiring persons from other Berne Convention member countries to undergo legal formalities as a prerequisite for copyright protection. (They may impose such requirements on their own citizens, but usually do not.) The effect of this principle is that the Bolivian author of a novel doesn’t have to register or declare her novel in Ghana, India, Indonesia or any other member state of the Berne Convention; her novel will be automatically protected in all of these countries from the moment it is written.

	In addition to these basic principles, the Berne Convention also imposes on member countries a number of more specific requirements. For instance, they must enforce copyrights for a minimum period of time. The minimum copyright term for countries that have ratified the most recent version of the Berne Convention is the life of the author plus 50 years for all works except photographs and cinema. The Berne Convention also requires its members to recognize and enforce a limited subset of ~~the “moral rights” discussed in [[Module 1: Copyright and the Public Domain#What Rights Come With Copyright.3F\|Module 1]]~~.		In addition to these basic principles, the Berne Convention also imposes on member countries a number of more specific requirements. For instance, they must enforce copyrights for a minimum period of time. The minimum copyright term for countries that have ratified the most recent version of the Berne Convention is the life of the author plus 50 years for all works except photographs and cinema. The Berne Convention also requires its members to recognize and enforce a limited subset of "moral rights,” a topic we'll take up later.

	The Berne Convention sets forth a framework for member countries to adopt exceptions to the mandated copyright protections. The so-called "three-step test" contained in Article 9(2) (~~[http://cyber.law.harvard.edu/copyrightforlibrarians/Module_2:_The_International_Framework#The_Three-Step_Test~~ discussed in more detail below]) defines the freedom of member countries to create exceptions or limitations to authors' rights to control reproductions of their works. Other provisions of the Berne Convention give member countries discretion to create more specific exceptions.		The Berne Convention sets forth a framework for member countries to adopt exceptions to the mandated copyright protections. The so-called "three-step test" contained in Article 9(2) (discussed in more detail below]) defines the freedom of member countries to create exceptions or limitations to authors' rights to control reproductions of their works. Other provisions of the Berne Convention give member countries discretion to create more specific exceptions.

	When the Berne Convention was revised most recently in Paris in 1971, the signatory countries added an [http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P410_75777 Appendix~~((.link_red))~~], which contains special provisions concerning developing countries. In particular, developing countries may, for certain works and under certain conditions, depart from the minimum standards of protection with regard to the right of translation and the right of reproduction of copyrighted works. More specifically, the Appendix permits developing countries to grant non-exclusive and non-transferable compulsory licenses to translate works for the purpose of teaching, scholarship or research, and to reproduce works for use in connection with systematic instructional activities.		When the Berne Convention was revised most recently in Paris in 1971, the signatory countries added an [http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P410_75777 Appendix], which contains special provisions concerning developing countries. In particular, developing countries may, for certain works and under certain conditions, depart from the minimum standards of protection with regard to the right of translation and the right of reproduction of copyrighted works. More specifically, the Appendix permits developing countries to grant non-exclusive and non-transferable compulsory licenses to translate works for the purpose of teaching, scholarship or research, and to reproduce works for use in connection with systematic instructional activities.

	While the Berne Convention outlines broad standards for copyright protection, it mandates few specific rules. As a result, the legislature in each member country enjoys considerable flexibility in implementing its requirements. For example, in the Berne Convention Implementation Act of 1988, the U.S. Congress adopted a “minimalist” approach to implementation, making only those changes to copyright law that were absolutely necessary to qualify for membership.		While the Berne Convention outlines broad standards for copyright protection, it mandates few specific rules. As a result, the legislature in each member country enjoys considerable flexibility in implementing its requirements. For example, in the Berne Convention Implementation Act of 1988, the U.S. Congress adopted a “minimalist” approach to implementation, making only those changes to copyright law that were absolutely necessary to qualify for membership.