America’s Role in Developing Modern Global Copyright Rules

We like to think of our country as a leader in just about everything. Very often, that is true. Not so much in international copyright. The U.S. was a leader for about 20 years or so in the entire 140 year history of international copyright agreements. Given that copyright-protected products are a major export for this country, we absolutely need to be aggressive about protecting our creators abroad.

The very first international copyright agreement was the Berne Convention for the Protection of Literary and Artistic works , first established in 1886. As I have mentioned in previous posts, because the United States clung to its Berne-prohibited formalities, it took us a century to join that Convention.

Berne (among many other IP instruments) is administered by the World Intellectual Property Organization (“WIPO”). WIPO is based in Geneva, Switzerland and has periodic meetings of IP experts from countries around the world. From time to time they agree on new treaties. For example, in 1997 two new internet-era treaties were established to update the minimum standards of protection in Berne for the coming age of networked digital transmissions.

One big shortcoming of WIPO treaties is that there is no system to ensure they are fully implemented and enforced. If a country agrees to the treaty (“accedes” in the language of international instruments), it gets the benefit of requirements of other countries to protect their creators. But what if that country doesn’t actually do what the treaty requires? Or what if it changes its law but there is no effective enforcement of that law? There is no mechanism to impose penalties for failure to abide by a WIPO-administered agreement. In a handful of the most extreme cases, the U.S. used its economic might to threaten sanctions against other countries and thereby leveraged some key changes, but that was outside any WIPO process.

Also in the 1990s, big changes were happening down the hill in Geneva with the trade folks. In 1994, the Uruguay Round negotiations transformed the “General Agreement on Tariffs and Trade” into the World Trade Organization (“WTO”). The WTO included detailed copyright rules in an agreement titled “Trade Related Aspects of Intellectual Property,” generally referred to as “TRIPS.” The TRIPS Agreement incorporated the substantive requirements of the Berne Convention, added a few additional substantive requirements, and also added enforcement requirements in regards to civil cases, criminal cases, and import controls at the border. Perhaps most importantly, noncompliance with TRIPS as a WTO commitment is subject to a litigation-style enforcement system between countries called “dispute resolution.” Losing a dispute resolution case means other countries are authorized to impose trade sanctions on your country. We in the U.S. hailed this as an important step forward for the effective protection and enforcement of IP globally.

One unintended consequence of incorporating IP protection obligations into a trade instrument was that IP rules were now being debated, negotiated, and made by countries’ trade officials, not their IP experts. Trade officials aren’t especially interested in the philosophical consistency of copyright rules. What they DO care about is their balance of trade. Copyright-protected products such as movies, music, books, videogames, and software are a tremendous source of trade surplus for us. The corollary is that most other countries in the world are net importers of copyright-protected products. So as their trade officials began to take the lead on international IP policy, those countries realized they had every reason to weaken copyright rules and thus reduce what their citizens have to pay to get the products they want. It quickly got a lot harder to get anything productive done. This view infected WIPO, as well. Nowadays in both the WTO and WIPO the proposals to weaken and undermine IP protections are more common that efforts to update standards for new technology.

Faced with intransigence at the multilateral bodies, the U.S. turned to free trade agreements (“FTAs”) negotiated directly with a single trading partner or perhaps several countries in a region. This allowed us to use the leverage of improved access to the U.S. market in exchange for those countries updating their copyright and other IP laws and enforcement. This was the high-water mark for U.S. leadership in global copyright. Our FTAs include terms more modern than either TRIPS or the WIPO internet treaties, as well as their own dispute resolution mechanism. The problem is, once you’ve traded access to the U.S. market you’ve lost your leverage going forward. Copyright is highly tied to new technology and needs to be updated. Plus, it turns out those dispute resolution cases are very political and the U.S. has brought only one copyright case in the WTO and none under our FTAs. That certainly wasn’t because our trading partners did such a perfect job of implementing their obligations. We needed to find a new way to gain negotiating leverage.

In his first term President Trump threatened to pull out of the North America Free Trade Agreement and was thereby able to force a renegotiation/update of that agreement into what is now known as the U.S.-Mexico-Canada (“USMCA”) agreement. Now, in his second term, he is threatening to pull out of the USMCA in order to force further updates. This willingness to take dramatic action has allowed him to create the negotiating leverage prior administrations had lost. He found a way to re-sell access to the U.S. market.

It is a delicate line to walk. If trading partners feel the U.S. can’t be relied upon to keep its agreements, why bother with the agreement in the first place? On the other hand, many other countries have been short-changing us on their commitments for a long time. Plus, given the size of the U.S. market other countries have a strong (if not irresistible) incentive to maintain productive trade relations with us. These are controversial points that go well beyond copyright, but as someone who participated in U.S. trade delegations for years I am delighted we found a way to stand up for ourselves.