The Development and Incorporation of International Norms in the Formation of Copyright Law

Abstract

The means by which international norms are developed and incorporated in the formation of copyright law have changed dramatically in recent years. In this article, Professor Dinwoodie explores the nature of those changes. The classical model of international copyright law afforded countries significant latitude to implement international standards in ways tailored to their own economic and cultural priorities. The lack of an effective method of enforcing international standards consolidated that deference to national autonomy. And international treaties tended merely to codify existing commonly accepted national standards. This model has undergone changes of late, most notably (but not exclusively) in the context of the TRIPS Agreement, which subsumed the principal international copyright obligations within the WTO Dispute Settlement system. This change to the classical model is potentially significant in many ways. Most directly, failure to fulfill international copyright obligations may be met by the imposition of trade sanctions. More broadly, however, the interpretation of international copyright obligations by WTO panels may alter the degree of national autonomy afforded member states and may make international copyright law more forward looking in nature. International copyright lawmaking by activist WTO panels thus may generate costs as well as gains. Professor Dinwoodie considers these issues through an analysis of the first (and, thus far, the only) report of a WTO dispute settlement panel regarding violation of a copyright provision contained in the TRIPS Agreement. This report, handed down in June 2000, found that an exemption introduced into section 11 (5) of the U.S. Copyright Act in 1998 violated the rights of owners of copyright in musical works guaranteed by the Berne Convention and incorporated within the TRIPS Agreement. Professor Dinwoodie concludes that the panel report is a good beginning to the new era of international copyright. The panel report is a strong and appropriate endorsement of the need to protect the rights of copyright owners and to hold WTO members to agreed-upon minimum standards. In addition, the report contains hints that WTO panels will accord some continuing respect to the value of national autonomy, will seek to interpret the TRIPS Agreement in a dynamic fashion responsive to changing social and economic conditions, will examine contentious issues of copyright law through other than a pure trade lens, will move cautiously before finding violations of international obligations, and will encourage the involvement of interested third parties in the resolution of WTO disputes. Despite this balanced beginning, the article concludes that private international lawmaking might further forwardlooking international copyright lawmaking in ways that do not incur the costs associated with activist WTO lawmaking. To facilitate this process, Professor Dinwoodie suggests that national courts consider resolving international copyright litigation by formulating substantive rules rather than localizing such disputes in a single country through traditional choice of law rules. Such a substantive law approach to choice of law fits well with the objectives of private international law. But this broader approach will also establish a means of incorporating international norms in the formation of copyright law without jeopardizing values appropriately furthered by the classical method of public international copyright lawmaking.

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