 This is the final segment of the first lecture in a series of lectures on copyright. In this segment, I'll examine the system of multilateral treaties that bind most countries in the world. A word of warning, this material is intricate. You are unlikely to retain all of it right now. Several times, during the remainder of this lecture series, we'll return to these themes. By the end of the series, you should feel comfortable with this important dimension of copyright law. Each country in the world creates, interprets, and enforces its own copyright laws. With minor exceptions that we'll consider in a minute, the force of those laws reach no further than the country's borders. To put the same point a bit more formally, copyright law has no extraterritorial application. It controls conduct only so far as the nation's edge. Suppose to illustrate that I'm an American musician. I write and record a song in the United States. You're a French musician in the United States on vacation. You hear the song broadcast on the radio. You like it, you return home. Without my permission, you make your own recording of the song in France and sell copies of that recording in France. Or you perform the song in a public venue in France. U.S. copyright law will not reach your behavior because none of the acts that might violate my exclusive rights under U.S. law occur in the United States. French copyright law might, because the acts that issue occurred in France, but only if French law shields U.S. composers like me. In any event, U.S. copyright law won't apply to your behavior because it has no grip outside of U.S. territory. As I mentioned earlier, there are some minor exceptions to this principle, a few of which are noted on your screen. The so-called predicate act doctrine enables U.S. copyright law to reach acts commenced in the United States that are completed outside the United States. When a defendant engages in infringing behavior in the United States that enables him to earn profits outside the country, courts will permit the copyright owner to recover those profits in U.S. courts. For a while, some courts took the position that if a defendant in the United States authorized behavior outside the U.S., he would violate U.S. copyright law if the behavior I'd issue would have been unlawful if it occurred here. The Court of Appeals for the Ninth Circuit reconsidered this issue in a case involving the distribution outside the U.S. of videocassettes of the classic Beatles movie Yellow Submarine. The outcome of that case was that the Court rejected its earlier position, finding authorization of extraterritorial behavior insufficient to trigger a violation of U.S. law. There has been some grumbling about this stance among lower courts and other circuits, but for the most part the judgment of the Ninth Circuit seems to have held up. Troublesome edge cases of this sort are likely to multiply in the future as technology blurs national boundaries. For example, which country's laws apply when a radio or television broadcast containing copyrighted material originates in country number one but is then received and watched by viewers in country number two? A pair of judicial decisions in the United States take the position that such acts are governed by the law of country number two and thus that a Canadian broadcast received by U.S. viewers is subject to U.S. law. The Internet will surely generate many more worrisome problems of this sort, but the presence of these difficult edge cases should not cause you to lose sight of the basic fundamental principle. Each country adopts its own copyright laws and those laws only apply to acts in that country. When a country develops its own copyright law, may it discriminate in favor of its own citizens or residents? In other words, may it disfavor foreign authors? For a long time the answer was yes. Indeed, until the late 19th century it was common for countries to deny copyright protection altogether to foreign authors. For example, until 1891 works by foreign authors first published outside the United States received no copyright protection at all in the United States. Foreign authors, most famously Charles Dickens and some U.S. authors denounced this practice and sought reform of U.S. copyright law but to no avail. What underlay this practice? What would prompt a country, like the United States, to discriminate against foreign authors? Several forces seem to have been at work. Simple nationalism is part of the explanation. A more complex explanation is that copyright protection is often thought of as a tax on consumers. By granting an author exclusive rights copyright law enables the author to raise the price of copies of his or her work or to charge more for admission to performances of those works thereby forcing consumers to pay more for those copies or performances. The rationale of that price increase of course is to provide a reward or incentive for creativity a rationale that we will examine much more detail in subsequent lectures. For present purposes the crucial point is that copyright protection causes price increases. Historically many nations were reluctant to force their own residents to pay those increased prices if the monies raised thereby were to be paid to authors in other countries even or especially if the result would be to stimulate creativity in those other countries. Attitudes of these sorts help to explain the origins of the practice of discriminating against foreigners Perpetuation of that practice however is probably better explained by interest group politics. For example, as Bill Patrick has shown, in the United States during the 19th century many businesses came to depend financially upon their privilege to print and distribute inexpensive copies of British books. Such businesses included publishers, printers and book binders. Not surprisingly, when legislative proposals to end the discrimination against foreign authors arose the interest groups that would have been hurt by the change lobbied against it. They were successful until 1891. Indeed, when the law was eventually changed the publishers and printers were able to secure an important qualification. Copyright protection was extended to non-resident foreign authors more specifically to foreign authors from countries offering similar protection to US authors but only if copies of their works were manufactured in the United States. This protectionist measure known as the Manufacturing Clause was eliminated with respect to foreign authors in 1955 and eliminated for US authors in 1986. Its significance in the present context is that it illustrates the ways in which the financial interests of an industry often congeal around a particular set of copyright laws and then retard any modification of those laws. We'll see several other examples of this dynamic later in these lectures. So now let's return to the main theme. As we've seen, one byproduct of the principle that copyright protection is nation-specific and has no extraterritorial application is that countries could and for a long time did discriminate against foreign authors. Another important byproduct is that historically copyright laws in different countries differed dramatically. Here's an illustration to which we'll return frequently in this course. Countries in continental Europe have long accorded generous protection to what is referred to as duomoral, loosely translated in English as moral rights. These are said to be non-economic rights. They shield the personal or personhood interests of authors and artists rather than their interests in making money. For example, moral rights forbid the purchaser of a painting from defacing it or obscuring the identity of the artist who painted it. These acts might not damage the artist financially, but they threaten the bond between the artist and her creations. By contrast, countries whose legal systems were primarily influenced by Great Britain have long been more skeptical of these moral rights. Such countries include the United States, Australia, New Zealand, and so forth. The upshot is that the existence or force of moral rights traditionally varied sharply across the world. The general point is that historically the entitlements enjoyed by authors and artists were quite different in different countries. That's where things stood in the late 19th century, widespread discrimination against foreign authors and wide divergences among the laws in different countries. There then began a long process, which continues to the present day, of convergence of national copyright laws. Convergence has encompassed three intertwined trends. First, the elimination of discrimination against foreigners. Second, the mitigation of variations across countries exemplified by the reduction in the divergence among countries concerning the meaning of originality discussed earlier in this lecture. And third, a steady increase in the scope, strength, and duration of copyright protection in all countries. These are important, so I'll repeat. First, the elimination of discrimination against foreigners. Second, the reduction of variations across countries. And third, an increase in the scope, strength, and duration of copyright protection. There's no logical link between these three dimensions. For example, you could imagine a harmonization having been achieved through universal adoption of the least common denominator, the laws of the least protective country. In other words, we could have seen a leveling down rather than a leveling up. How and why the three trends nevertheless have been linked historically is one of the major issues in the legal history of copyright. I hope at the end of these lectures you'll have a better sense of the possible answers. The primary vehicles of this process of convergence were a series of multilateral agreements, treaties, or analogous deals among many countries. Since the late 19th century, there have been seven major multilateral agreements implicating copyright law. They are listed on the map in front of you. The Berne Convention, the Universal Copyright Convention, the International Convention for the Protection of Performers, Producers of Phonograms, and Broadcasting Organizations, commonly known as the Rome Convention. The agreement on trade-related aspects of intellectual property rights, commonly known confusingly as TRIPS. The 1996 treaty adopted under the auspices of the World Intellectual Property Organization, commonly known as the WIPO Copyright Treaty, the Contemporaneous WIPO Performances and Phonograms Treaty, and the recently concluded Marrakesh Treaty for the Visually Impaired. All of these agreements are complex. I'm not going to attempt here to walk you through all of their various provisions but instead, in this lecture, I'll identify the most important general themes of these agreements in subsequent lectures when addressing specific sets of legal rules that have been shaped or constrained by these treaties will return to the relevant treaty provisions. The two most important agreements are the Berne Convention and the TRIPS Agreement, so we'll spend most of our time on those. The Berne Convention is the grandparent of these multilateral agreements. It was the first to be adopted. The negotiations that resulted in the Berne Convention began in 1858 and finally culminated in 1886 with the adoption by ten countries of the original version of the convention. Since then, it's been revised seven times. If you click on the icon associated with history in the map, you'll find a series of slides that provide details concerning the evolution of the Berne Convention, when different provisions were added, how many countries signed on to each, and so forth. Today, meaning as of January 2016, the convention has been joined by 168 countries extending its reach over most of the world. Here's a map showing its current coverage. Three dimensions of the current version of the Berne Convention are crucial. The first is the so-called national treatment principle. Prior to the Berne Convention, some countries had been chipping away at the widespread practice of discrimination against foreign authors through adoption in bilateral treaties of the so-called reciprocity principle. As its name suggests, the reciprocity principle depends upon two or more countries each extending rights to the residents of the others. Country number one agrees to grant copyright protection to the residents of country number two. If and only if country number two grants copyright protection to the residents of country number one. The Berne Convention, and as we will see all subsequent multilateral agreements, repudiate this reciprocity principle in favor of the simpler and more powerful national treatment principle. The key idea in national treatment is that country number one must grant to the residents of country number two the same rights it grants to country number one's own residents. To illustrate, today French authors are given the same rights in the United States as are given to US authors, and US authors are given the same rights in France as are given to French authors. The application of this principle in the Berne Convention is actually somewhat more encompassing than I have thus far suggested. As the map indicates, the Berne Convention requires each signatory country to grant to, quote, protected authors the same rights it accords its own nationals. If you follow the links in the map, you'll see that the term protected authors is capacious. The net effect is to require all member countries to extend the benefits of their copyright laws quite broadly. In one respect, however, the application of the national treatment principle in the Berne Convention is less encompassing than I have thus far suggested. Specifically, the Berne Convention does not apply to what are called neighboring rights. This is the term used in many countries to describe the legal rights of performers and producers. They are said to be neighboring rights because they are adjacent to copyrights, but not true copyrights. Such neighboring rights are governed not by the Berne Convention, but by the Rome Convention. The geographic coverage of the Rome Convention is substantially smaller than that of Berne. As of today, 91 countries have joined. Among the major countries not participating is the United States. We'll return later in this series of lectures to the ways in which the Rome Convention affects the definition and scope of the rights of public performance. For present purposes, the crucial point is that the members of the Rome Convention are permitted to discriminate against the residents of non-member countries, including U.S. nationals. And they do. Here's an example. France imposes a levy on sales of blank tapes. That money is distributed as follows. 25% is devoted to French cultural purposes. 25% is paid to the composers of the musical compositions recorded on those tapes. 25% goes to the performers of the recordings of the songs recorded on the tapes. And 25% goes to the producers of those recordings. U.S. composers get a share of the second slice because musical compositions are governed by the Berne Convention, and thus France may not discriminate against U.S. authors. By contrast, U.S. performers and producers are excluded from the third and fourth slices because their interests are not governed by the Berne Convention. So to review, the first key dimension of the Berne Convention is national treatment, the principle that each member country must extend to the residents of other member countries the same rights it extends to its own residents. The second of the three major dimensions of the current version of the Berne Convention is the prohibition on formalities. As the map indicates, the key idea here is that member countries may not impose upon protected authors any administrative obligations that they have to satisfy in order to acquire and force or maintain their copyrights. Curiously, member countries may impose such obligations on their own nationals, and occasionally they do so. But as one might imagine, discrimination against one's own citizens is rare. This prohibition on formalities creates a sharp contrast between copyright law and patent law. Roughly speaking, while copyright law protects works of authorship, patent law protects inventions. To obtain a patent, an inventor must comply with myriad administrative requirements. Typically, he or she must apply for a patent within a limited period of time and must demonstrate to the satisfaction of a patent examiner that his or her invention is useful, novel, and non-obvious. Most patent applicants eventually succeed, but not all, and compliance with these requirements is costly. Copyright law, in the overwhelming number of countries that adhere to the Berne Convention, is radically different. In those countries, there are no administrative preconditions to the acquisition or enforcement of copyright. So, for example, if you happen to be taking notes while watching this lecture and, as we discussed previously, your notes contain a bare minimum of creativity, then you have acquired a copyright in your notes. Similarly, if you take a snapshot of your family and that photograph is minimally creative, then you will acquire a copyright in the photograph. No formal grant, no governmental imprimatur is necessary. Historically, what underlay this hostility to formalities? The traditional explanation is that the country's most influential in shaping the Berne Convention subscribed to the so-called natural rights theory of copyright. If an author's control over his or her creations is a natural right, then the interposition of governmental formalities would seem unacceptable. Professor Chris Sprigman, who is written most insightfully about this issue, persuasively argues that this traditional explanation is unconvincing. It's more likely that the drafters of the Berne Convention provisions pretending to formalities believe that disparate administrative requirements in different countries would frustrate author's ability in practice to secure global protection for their works. Whatever the reason, the current draft of the convention is firmly set against formalities. This issue might seem technical and unimportant, but for two reasons it's not. First, lawmakers in some countries have long been hostile to the Berne Convention's prohibitions on formalities. The premier example is the United States, which, as we will see, retained many formal requirements for copyright protection until late in the 20th century. Reluctance to surrender those requirements helps to explain why the Berne Convention, excuse me, why the United States did not join the Berne Convention until 1989. The second reason is that an unexpected byproduct of the absence of formalities is that our social environment is increasingly clogged with billions of modestly creative cultural products over which someone enjoys copyright protection, but persons who wish to make use of those products have no effective way of ascertaining the identity of the owners of those copyrights. Copyrights, as you will soon see, are everywhere, but identifying the persons to whom they belong is often infeasible. As a result, some scholars and lawmakers advocate the reinstatement of formal requirements for copyright protection. The result would be to reduce sharply the number of copyrighted works and thus the density of the legal soup through which we daily move. The principal impediment to such a reform is the Berne Convention. The third of the three main dimensions of the Berne Convention consists of a set of obligations imposed on all member countries to establish minimum levels of copyright protection. For example, member countries must extend copyright protection to certain kinds of works, must grant the authors of those works specific exclusive rights, must allow those rights to continue for specified periods of time, and so forth. The details of those minimum standards will be examined in subsequent lectures. For present purposes, the main point is that, although the Berne Convention has lots of such requirements, it contains no effective mechanisms for punishing member countries when they fail to comply with their duties in this regard. As a result, countries that want the benefits of the Berne Convention but don't want to comply with all of its obligations are free as a practical matter to join up and then to delay or refuse to comply with the provisions they find unattractive. The United States between 1989 and 1994 definitely fell into this category. The posture of the United States changed substantially with the adoption of the TRIPS agreement. The history of the negotiations that resulted in TRIPS is intricate, much too intricate to be explored here. If you're curious, the chronology is reviewed in the series of slides that can be accessed through the link associated with the subtopic origins. Today, the geographic coverage of the TRIPS agreement rivals that of the Berne Convention. All member countries of the World Trade Organization, as of January 2016, that's 162 nations, are subject to the agreement. In important respects, the TRIPS agreement parallels the Berne Convention. Like Berne, TRIPS adheres to the principle of national treatment. Also like Berne, TRIPS imposes on member countries the obligation to establish minimum levels of copyright protection. As the map indicates, these obligations pertain to the kinds of works that are subject to copyright protection, including, for example, computer software. The entitlements of copyright owners must be given, the duration of copyrights, and so forth. We'll return to these details later. That said, TRIPS differs from the Berne Convention in three major respects. First, it imposes upon member countries obligations, not merely to establish legal rights, but also to establish effective remedies when those rights are violated. Some of those remedies, for example, pertaining to the availability of preliminary injunctions, were more expansive than some member countries had previously adopted and required the adoption of new laws. Second, the TRIPS agreement, because it is part of the general agreement on tariffs and trade, has, unlike the Berne Convention, a mechanism for compelling member countries to comply with their obligations. Specifically, the GATT contains a dispute resolution procedure that enables a member country to initiate a complaint against another member country that has failed to live up to its TRIPS obligations. Details concerning the handling of such disputes can be found by pursuing the links on the map. The principal penalty imposed upon a country found to have failed to comply with its obligations, under this agreement, is so-called cross-sectoral retaliation. In other words, the complaining country is permitted to impose trade sanctions on other goods. This process is far from perfect, but it does have teeth. The third of the three respects in which the TRIPS agreement deviates from Berne's is related to those teeth. As you can see from the map, the TRIPS agreement incorporates by reference all of the obligations imposed on member countries by the Berne Convention, except one, Article 6-BIS. What's that? That article, it turns out, is the provision of the Berne Convention that covers moral rights. Recall that moral rights have a lower status in common law countries than in civil law countries. The result at the exclusion of Article 6-BIS is that countries, such as the United States, that are reluctant to adhere fully to the Berne Convention obligations with respect to moral rights, are still able to give them short shrift without running the gauntlet of WTO dispute resolution proceedings. The TRIPS agreement is the most controversial aspect of copyright law, indeed, of the law of intellectual property as a whole. Debate concerning the merits and demerits of TRIPS, and in particular, whether it's been good or bad for developing countries, has been intense since the agreement was first adopted. If you follow the link associated with the subtopic merits and demerits in the map, you will find a few slides summarizing the principal contending positions on this issue. Later in the lecture series, once we have on the table more information concerning the actual impact of TRIPS, we'll return to this fundamental issue. We come next to two 1996 treaties, both of them negotiated and administered by the World Intellectual Property Organization. They have almost identical geographic coverage, currently 93 and 94 countries, respectively. The first requires member countries to expand somewhat the rights of authors, the second requires member countries to expand the rights of performers and producers. The most novel and important provision in both of these treaties is the obligation imposed on member countries to reinforce technological protection measures. Specifically, both require member countries to penalize in some way the circumvention of encryption or the removal of information containing copies of copyrighted works that identify the copyright owners. A major branch of copyright law has grown out of these treaty provisions, and we'll consider that branch in lecture number 11. The most recent of the seven multilateral treaties is the Marrakesh Treaty on Exceptions for the Visually Impaired, which was wrapped up in Morocco in July of 2013. There are over 300 million visually impaired people in the world. Their ability to gain access to copyrighted material in formats that they can apprehend has long been curtailed by the combination of copyright law and the reluctance of copyright owners to grant permission for the creation of digital versions of their works that, if they escaped into the wild, could corrode their primary markets. The Marrakesh Treaty attempts to overcome that impediment by requiring member countries to adopt laws that permit the reproduction and distribution of published works in formats accessible to the visually impaired and then to permit organizations that serve the visually impaired to take them from one country into another. The hope is that this new regime will eventually result in standardization of accessible formats and thus increasing the set of materials available everywhere and saving money. The Marrakesh Treaty is unique among the seven multilateral agreements in one important respect. It's the only one that requires member countries to limit the scope of copyright rather than requiring member countries to create minimum levels of protection. Overlaid on the pattern created by these multilateral agreements are a few regional agreements which further constrain the freedom of member countries to shape their national copyright systems. The most prominent of the regional organizations that generate such agreements is the European Union. Several EU directives listed in the map obliged countries within the Union to manage their copyright systems in particular ways. Less well known is the African Intellectual Property Organization, commonly known as OAPI, the members of which are subject to similar obligations. We'll take up the details of these regional directives later. The framework created by this welter of multilateral and regional agreements is not stable. On the contrary, countries and major interest groups within those countries struggle constantly to tilt the framework in their favor. Sometimes the struggle involves interpretation of existing provisions. One of the most important of those provisions is known as the three-step test. This is not a separate treaty. It's rather a recurring principle, variants of which can be found in most of the treaties we've already reviewed. These variants are not identical, but they're similar. Shown here on the screen is the version contained in the Berne Convention, specifically in Article 9-2 of the Convention. I've inserted in brackets letters that divide the so-called three steps. With those insertions, the provision reads, it shall be a matter for legislation in the countries of the Union to permit the reproduction of such works, A, in certain special cases, provided that B, such reproduction, does not conflict with the normal exploitation of the work, and C, does not unreasonably prejudice the legitimate interests of the author. The TRIPS Agreement, as you can see, contains a similar provision, although note that the TRIPS version, unlike the Berne version, applies to all exclusive rights enjoyed by copyright owners, not merely to the right of reproduction. Analogous provisions can be found in other treaties. What's going on here? What these provisions are designed to curb is the impulse of some countries to limit the scope of copyrights by granting exceptions or privileges to users who wish to employ copyrighted works in ways that would otherwise be illegal. The basic idea underlying the three-step test is that such exceptions may not cut too deeply into the rights of copyright owners. But how deep is too deep? The language of the treaty provisions is notoriously vague on that crucial point. As a result, many different interpretations of the three-step test have proliferated. Some are quite strict. If widely adopted, they would require the United States, for example, to abandon, or at least to curtail significantly its fair use doctrine, which we'll consider in lecture number nine. Other interpretations are substantially more permissive. An intermediate position on the spectrum of interpretations, just much to recommend it, is the interpretation offered by Professors Bernd Hugenholz and Ruth Okedici set forth on the map. Quote, limitations and exceptions, that one, are not overly broad. Two, do not rob right holders of a real or potential source of income that is substantive. Three, do not do disproportional harm to the right holders. We'll pass the test. The debate concerning the meaning of the three-step test will likely continue for quite a while. Another source of instability in the international framework is that countries, often nudged by interest groups, are constantly attempting to supplement the treaties that we've considered thus far with additional bilateral or plural lateral agreements. Three, ongoing efforts of this sort are listed in the map. The anti-counterfeiting trade agreement, commonly known as ACTA, has been under negotiations since 2006. It differs from all the treaties we've considered thus far, both in the small number of countries that have been involved in the negotiations. And even more importantly, in the fact that those negotiations were conducted largely in secret. Despite considerable resistance to that secrecy and to some of the substantive provisions that emerged from the negotiation, ACTA looked well on its way toward ratification and adoption until July of 2012 when the European Parliament, responding in part to growing public outcry, balked, refusing its consent to the agreement by a vote of 478 to 39 with 165 abstentions. It's now unlikely that ACTA will ever enter into force. Next in line is the Trans-Pacific Partnership Agreement, or TPP. This too was negotiated by a small group of countries, shown on your screen, in a series of confidential meetings. The final draft was released to the public in November of 2015. The legislatures of the participating countries, including Congress in the United States, are currently considering whether to approve of the agreement. The outcome of their deliberations is far from certain. If it is approved by the requisite number of countries and enters into force, the TPP will lead to some medium-sized changes in the global copyright system. Copyright law in the United States will change very little. However, some of the other participating countries and countries that later join the group will have to adjust their laws. Three such adjustments are particularly significant. First, roughly half of the participating countries will be obliged to increase the duration of copyright protection from the life of the author plus 50 years to the life of the author plus 70 years. Second, some countries will be obliged to enhance their prohibitions on the circumvention of technological protection measures. And finally, some countries may be obliged to adopt or modify statutory provisions permitting successful plaintiffs to recover so-called statutory damages, although their duties in this regard are less severe than they would have been if the original draft of the TPP had survived. Whether these three changes are good or bad, we will consider in lectures 6, 11, and 12, respectively. More modest in ambition and thus less controversial is the Beijing Treaty on Audiovisual Performances, which, if it comes into effect, will expand the moral rights of actors and other audiovisual performers. We'll consider those rights in lecture number 8. The general point is that while the broad contours of the international framework are firmly in place, many important details are in continued flux. Typically, the representatives of major institutional holders of copyrights and other intellectual property rights push for treaty provisions that require member countries to increase the scope of their rights, while public interest organizations play defense, resisting reform. With the exception of the Marrakesh Treaty, the public interest organizations rarely offer treaty provisions of their own. This concludes our preliminary review of the structure of the international framework of copyright law. To repeat my ambition in this section of the lecture has not been to itemize all of the features of that framework. That would be impossible in a single lecture or even an entire course for that matter. Rather, my goal has been to convey to you the key principles and trends and to mark the locations of the treaty provisions to which we'll return when examining specific features of copyright law. Next week, we will focus not on copyright law, but on theory. We'll begin our examination of the questions, what concerns or values underlie copyright and how my copyright law be reshaped to advance those concerns or values more effectively.