Session II: The Impact of International Copyright Treaties and Trade Agreements on the Development of Domestic Norms (Eric Schwartz)

Abstract

Let me begin by saying thank you Pippa, and thank you to my friends Jane Ginsburg and June Besek for inviting me here. It is always an honor to be back at the Kernochan Center. I had the pleasure of knowing Jack Kernochan and working and learning from him, so it is a personal pleasure as well to be here. Pippa and others posed a few questions to us, and the other speakers on the first panel who have addressed some of these issues. I am going to put my own gloss on the questions. The first was, “How do the copyright treaties and trade agreements affect national IP laws in the U.S. and elsewhere?” And I guess the real question is: are norms even being set by the treaties and trade agreements? Let me just start with the basics for the students in the room who may be unfamiliar with international copyright law. First, there is no such thing as international copyright law. I always put “international” in quotes. International copyright is an interlocking set of national laws for which the treaties set norms— often floors (minimum levels of protection). That is what happens when you get lots of countries in one room trying to agree on what the levels of protection and enforcement—and whatever else—should be – minimum sets of norms.1 The most difficult part of putting the treaties into force is not the treaty language; it is the implementation of the treaties in the national laws. If you look at the history of the treaties—as Karyn has provided, and Steven Metalitz and Probir Mehta have talked about—there is a long lag time between the treaties being completed and being enacted into national laws.2 Another basic point: I spent my formative years at the U.S. Copyright Office negotiating trade agreements, both bilaterals and multilateral agreements. One constant I found is that no country agrees to anything unless they want to. That is just a basic observation, for example, it was part of the U.S.-Soviet Trade Agreement that granted the Soviets “most favoured nation” trade status in exchange for an IP chapter; that agreement was signed by President Bush and Gorbachev.3 The idea is