WIPO’s copyright standards cause international follow on

In recent years, the process of international copyright lawmaking has become quite different from that which gave birth to the Berne Convention.' If asked to identify the moment at which the international process changed, most commentators might highlight the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)2 as an era-defining event. 3 And, to be sure, TRIPS did radically change the institutional structure of the international intellectual property system as well as some of the assumptions underlying the system.4 But I would like to suggest that the WIPO Copyright Treaty (or WCT)5 also represented a watershed moment in international copyright law. Critical analysis of the debates leading up to and during the conclusion of that treaty in 1996 highlights a number of the challenges that we need to confront in shaping the future of international copyright lawmaking.

The WIPO Copyright Treaty radically changed the international copyright lawmaking environment for two reasons. First, it was in the 1996 Diplomatic Conference that one begins to see the most widespread explicit discussion of the concept of "balance" being integral to international instruments. Indeed, this led to recognition of that concept in the preamble to the treaty. Of course, the importance of balance in the international copyright system had been discussed before 1996. For example, the Stockholm revision of the Berne Convention in 1967 clearly sought to reflect a new balance that more explicitly recognized the concerns of developing countries about access to copyrighted works.6 But the rhetoric or language of balance came to the forefront in 1996 with the WIPO Copyright Treaty, and this rhetoric increasingly frames the current debate.

Second, the WCT was a watershed moment for international copyright law in that the process that led up to the conclusion of the two Internet treaties (both the WCT and the WIPO Performances and Phonograms Treaty) and the conduct of the diplomatic conference at which they were considered were quite different in several respects from that which had been seen heretofore. In particular, on some of the issues addressed in the treaty, the contracting states relied much less extensively on prior national experimentation than had been the norm in prior copyright agreements. For example, on the crucial issue of prohibiting the circumvention of technological protection measures (TPMs), contracting states sought an international solution at a very early stage in the development of norms. Moreover, the 1996 Diplomatic Conference was populated by a wide range of non-governmental organizations (NGOs) in numbers never before seen at international copyright events. And (perhaps because of these first two changes in process), the debates that took place nationally and internationally were substantially assimilated. These features of the process that led to the WCT remain with us today.

This brief essay addresses both the concept of balance and these changes to the lawmaking process. On the question of balance, I suggest that balance is a much more complicated concept than we assume. Even in the domestic environment, the phrase is used somewhat too glibly. But in the international context, it becomes even more complex.7 In particular, we need to take into account the multidimensional nature of balance (or what I call the various vectors of balance) before we try to insert internal substantive balance directly into treaty instruments. This is true whether we are talking about new authors' rights or the development of users' rights.

I am also concerned by some aspects of the changes that occurred to the lawmaking process in 1996. In particular, there is often a failure to appreciate fully the difference between national lawmaking and international lawmaking. To be sure, in a dynamic, integrated lawmaking process, one is a constituent part of the other; that is, national lawmaking contributes to international lawmaking and vice versa.8 But these processes involve different institutions with different democratic and political structures; those urging further reform of international copyright law need to be aware of these differences.

BALANCE

For quite some time, few discussions of domestic copyright law have failed to address the need to preserve a balance (or, commonly, a "delicate" balance) between incentivizing creation by authors and ensuring that others can access and use works thus created. 9 But it is increasingly common to hear participants in international copyright lawmaking also talk about balance. Indeed, of late, it appears that neither the World Intellectual Property Organization (WIPO) nor the World Trade Organization (the WTO) is allowed to issue a press release that doesn't mention the word "balance."

The term "balance" is found in the language of the preamble to the WIPO Copyright Treaty,10 which was the most explicit acknowledgment of the concept on its own terms then found in a global copyright agreement. The language in question was first advanced by India during the discussions in Geneva, and in the final text the preamble makes reference to a "balance between the rights of authors and the larger public interest, particularly education, research, and access to information. ''

This reference has been celebrated by many commentators as a change in the tone of international copyright law.12 And it certainly reads quite differently from the language in the documents that had been produced early in the process leading up the WIPO Copyright Treaty. By way of comparison, consider a 1988 preparatory document that WIPO produced for consideration by a forum whose deliberations about norm-setting later fed into the work of the Committee of Experts that (eventually) led to the 1996 treaty:

The objective [of the proposals for the setting of norms in the field of intellectual property law] is to make the protection of intellectual property rights more effective throughout the world. "More effective" means that the norms and standards of protection are raised, where necessary, to the required level, and that enforcement of intellectual property rights will be easier and the sanctions for infringement stricter. This objective may be achieved by creating new treaty obligations or by persuasion.13

This is very different language from what ended up in the preamble to the 1996 treaty. In fact, during the debates at the Diplomatic Conference, the concept of "balance" was ubiquitous. According to notes taken contemporaneously, Bruce Lehman, the head of the U.S. delegation, "led off the discussion with a short and highly generalized statement of support for the treaties, recognizing the importance of 'meaningful and balanced protection."'' 1 4 The same sentiment was expressed in interventions by the European Communities and a number of Asian countries. Likewise, most delegates from "developing countries in Africa and the Middle East emphasized the need for a balance among right holders, affected industries and public interests.”

Implicit in this celebration of balance is the fact that international copyright treaties historically had not made explicit reference to substantive balance. The classical international copyright system (in the sense of the network of treaties, at the center of which stood the Berne Convention) did not of itself try to achieve substantive balance. But this was not because the classical system was pursuing imbalance. Rather, it was because the international system was trying both to do more and to do less with respect to balance than the domestic copyright system.

It was doing less in the sense that the international system did not articulate positive copyright law. Instead, it established parameters within which national political processes created the substantive balance appropriate to the circumstances of each different domestic order. By the same token, the international system was doing more than the domestic system with respect to balance because in addition to considering (to some extent) the appropriate outside levels of protection to be mandated internationally, it also sought to reflect an additional balance. That is, the balance between national autonomy on the one hand and universal standards on the other.

One might argue that the restrictions that the international copyright system imposed on national lawmakers were inherently imbalanced in that the international copyright system on the whole simply articulated minimum levels of protection. It established very few ceilings on protection. 17 This feature of the system to some extent simply reflected the context in which the classical system arose. The Berne Convention was concluded at a time where countries were trying to create basic protection against rampant piracy (as well as to negotiate protection for foreigners). As a result, Berne Convention contained very little by way of explicit commitment, in those terms at least, to balance.

But there was plenty of room for balance. Because the mandated standards in the Berne Convention were relatively unobtrusive, nations retained a great deal of flexibility to achieve in their own domestic law the substantive balance they wanted. There was no real enforcement mechanism for contracting states that sailed too close to the wind, as the U.S. attitude to compliance with article 6bis highlighted. 18 And the international system was primarily a codifying device. It tended to consolidate norms on which most of the world already agreed, based upon positive experience in national law. 19 As a result, balance could be achieved on the ground, not through a substantive balance mandated in the international treaty but through conceiving of the "international copyright system" in broader terms that encompassed regard for national law.

Fast forward to 1994 and the TRIPS Agreement; this was the moment when many commentators think the international intellectual property system changed. At this time, the WIPO Copyright Treaty was still in the early stages of debate (though its precursors go back some years earlier). The TRIPS agreement, like the Berne Convention, contains important flexibilities and limitations.2 ° Obviously those flexibilities have drastically been reduced by more effective enforcement mechanisms and, especially in the patent area, some greater detail on substantive obligations. 21 But the basic conceptual framework was kept in place. Substantive balance in applicable intellectual property law was to be achieved in large part by relying on national political processes.

In fact, if one is to find balance embedded in the TRIPs Agreement itself, it can only be found by situating the Agreement in its broader context of the WTO Agreements. In return for accepting restrictions on their national autonomy to maintain unduly low levels of intellectual property protection, developing countries secured benefits in terms of market access.22 That is, the WTO Agreements contained a balance not simply between right holders' interests, on the one hand, and user groups' interests on the other, or between national autonomy and universality. Rather, they also embodied a balance between intellectual property obligations and nonintellectual property commitments. There was, in effect, another vector of balance introduced into the calculus underlying TRIPS.

The concept of balance explicitly introduced in the preamble to the WIPO Copyright Treaty (and its significance) has to be understood in this broader context. Indeed, one could complexify the vectors of balance further. The balance that policymakers pursue might be achieved not only internally through copyright law alone, but also through the relationship between copyright, on the one hand, and contract law and competition law, on the other.23 Or, one could argue that real balance is achieved through a combination of legal rules and enforcement or compliance, a dynamic which is obviously affected by both easy digital reproduction and the application of technological protection measures. 24 In short, balance is a more complex organism than we might expect or might assume.25

PROCESS

Let me turn now to the process that led to the WIPO Copyright Treaty. I will focus on three aspects of that process: the speed with which the question of copyright protection in the digital arena (and, in particular, protection against circumvention of TPMs) became a matter of international regulation; the increased involvement of NGOs in the international lawmaking process; and, the assimilation of national and international lawmaking.

Speed

Normally, it takes an appreciable period of time for countries to move from proposals (and, indeed, national laws) to a concluded international treaty. The Diplomatic Conference took place during December 1996. The so-called "digital agenda," which the Conference was to address, was only considered as such by the WIPO Committee of Experts in September 1995.26

Moreover, classically, international copyright law had in large part involved consolidation of laws that were already enacted at the national level, at least by some of the contracting states. 27 But the models for digital copyright law that countries were considering during the WIPO Copyright Treaty deliberations were no more than proposals at the national level. The U.S. White Paper on the National Information Infrastructure was published only in the autumn of 1995.28 The parallel Japanese and EU proposals can be traced to the same time frame.29

Thus, the WCT was not a consolidation of national laws; it was an international consolidation of national proposals (within a year of those proposals being first floated in detail). And the speed with which the WCT was concluded was very different from that at which the classical international copyright system moved. The WCT can be seen as an attempt to create an international norm that would then be used to structure then-nascent national models (particularly with regard to prohibitions on circumvention of TPMs). ° Indeed, one of the primary motivations for the United States to push international action was the resistance being encountered domestically to proposals pending in the Congress; those international obligations could then be used to reframe the domestic debate.