Trade Agreements as the New Copyright Law: This Trend Portends a Serious Danger: The Establishment of Copyright Policy in Private ... and Often in a Way That Circumvents Congress' Authority as This Country's Sole Legislative Body

Article excerpt

Susan Schwab, the U.S. trade representative, reached a deal with trade officials from Russia during the Asia-Pacific Economic Cooperation summit in Hanoi, Vietnam, on Nov. 19, 2006. It calls for the former Soviet country to "significantly upgrade" its intellectual property protections in exchange for membership in the World Trade Organization. In a Hollywood Reporterstory ("Copyright Biz Keeps Eye on Russia," by Brooks Boliek, Nov. 21, 2006; http://tiny, Schwab commented that the bilateral agreement serves as a blueprint for protecting and enforcing intellectual property rights in Russia. "This is a strong and far-reaching commercial agreement that meets the high standards of President Bush's market-opening trade agenda and moves Russia closer to full integration into the global, rules-based trading system," she said.

The deal Schwab made with Russia highlights the increasing role the U.S. trade representative has in global intellectual property law issues, including the enforcement of domestic copyright law. Unfortunately, this trend portends a serious danger: the establishment of copyright policy in private, without notification to the American public, and often in a way that circumvents Congress' authority as this country's sole legislative body.


Just as every other federal law that is ultimately codified into the U.S. Code (this country's official compendium of federal statutes), the development and ultimate passage of copyright laws happens according to a time-honored process.

Bills that originate in the House of Representatives or the Senate will become law if the bill is passed by both houses of Congress and if the president signs the bill. Once the bill becomes law, it will be published in the U.S. Code, which is a compilation of the public and permanent statutes arranged by topic or subject.

The Copyright Act of 1976 is codified at Title 17 of the U.S. Code. The authority for the Act comes from the Copyright Clause of the U.S. Constitution, which states that "The Congress shall have Power ... To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Congress is, has been, and (absent a Constitutional overhaul) always should be the first and final drafter and arbiter of the Copyright Act. As Justice Ruth Bader Ginsburg wrote in the Supreme Court's unanimous decision in Eldred v. Ashcroft (2003), "[The Court has] stressed ... that it is generally for Congress, not the courts, to decide how best to pursue the Copyright Clause's objectives." But recently, Congress' authoritative role in passing copyright legislation either has been surrendered or snatched from it. This change has roots in an international treaty called the Berne Convention.


The Berne Convention for the Protection of Literary and Artistic Works is an international treaty, first drafted in 1886, that seeks to make copyright protection consistent among all signatory countries: An author's work created in one signatory country should be afforded similar rights and protections when that work is present in another signatory country. Further, the Berne Convention obliges all signatory countries to respect an author's moral rights. ("Moral rights" is a term that describes the ability of authors to control the eventual fate of their works. The concept relies on the connection between an author and his or her creation and protects the personal and reputational aspects of a creative work rather than its monetary value, according to Betsy Rosenblatt, "Moral Rights Basics," The Berkman Center for Internet & Society, March 1998; .edu/property/library/moralprimer .html.) The U.S. signed the treaty in 1988, becoming the 76th nation to sign. More than 100 countries are signatories.

From a practical standpoint, the U. …


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