The Digital Media Project

 

Source

Philip Merrill

Title

TRU #38 of reciprocal protection

No.

040909merrill08

 

Name:

Philip Merrill

Affiliation/additional information:

Active Contributor, Pasadena, California

Date submitted:

2004/09/09

 

#

Criteria

Description

1.

Name of TRU

Right of reciprocal protection

2.

Summary description of TRU

reciprocal protection is a complex exchange based on a value-expression permitting complementary but not identical performance. Between nations, reciprocal protection often means treating authors from foreign countries the same way a country would normally treat its own nationals. The neighboring rights of performers might also be handled under reciprocal administration agreements between collecting societies. In principle, reciprocal agreements and exchanges (between private or corporate parties) should be digitally supported by DMP

3.

Use records of TRU

Almost the whole of international copyright law uses principles of reciprocal protection to a certain extent. In particular, reciprocal national treatment underlies how most international treaties are applied. A court in a given country treats members of that country a certain way and based on treaty, can extend that treatment to members of other countries. Most bilateral and international intellectual property treaties are founded on a reciprocal offer: "You treat our guys like your guys, and we'll treat your guys like our guys." The treaty may produce local legislation supporting new laws that would then be applied by each court in each country separately. In fact, the enabling legislation might differ in particulars, leading to very different handling of specific court cases. Added variety is provided by the international collecting societies, imposing additional unique treatments to administer "rights".

4.

Nature of TRU

Reciprocal protection through "national treatment" underlies much of international copyright law, particularly between public authorities and between collecting societies. In section 5.2.2.3 of International Copyright, discussing collecting societies, Paul Goldstein says, "Reciprocal representation agreements provide the economic link between a collecting organization in one country and its counterparts in other countries. Under these agreements, each society undertakes to represent in its own country all the works in the library of the other. Professor Gunnar Karnell has observed that a fundamental provision in most of these cross-national agreements is that in each country all holders of rights, regardless of the organization to which they belong, are treated in exactly the same way." Goldstein then quotes Karnell, "Thus, the organizations apply the national treatment principle proclaimed by both the Berne Convention and the Universal Copyright Convention." As described under TREATIES at TRU to restrict performance, Rome, TRIPS and the WIPO treaties WCT and WPPT can be added to the list of treaties proclaiming national treatment.

Colorful conflicts can arise from reciprocal national treatment. Goldstein gives two good examples.

  • sec. I.2.2 -- If one country doesn't consider a creative product to be a "literary or artistic work" but a second country does consider that same product to be one, then the first country does not have to protect the products from the second country as "works" but the second country will have to protect products from the first country.
  • sec. 3.2.3.2 -- Germany follows the Rome Convention, the United States does not, but they both adhere to TRIPs. So Germany would have no obligation to protect U.S. phonograms since the U.S. does not belong to the Rome Convention, but Germany would be obligated by TRIPs to protect "the same U.S. performer against the unauthorized communication to the public of a live performance as prescribed in TRIPs Article 14(I)."
Goldstein also notes that TRIPs imposes its own special variety of obligation because it is generally based on the protection of intellectual property of all kinds, which is very different from copyright's formulas for how to treat "works" (sec. 3.2.3.2).

At http://www.wipo.int/documents/en/meetings/2003/sccr/pdf/sccr_9_7.pdf p. 48, Sam Ricketson calls attention to Berne's Article 20, which allows bilateral agreements and alternative agreements provided that they deliver better-than-Berne protection. It is interesting that systems of reciprocity can nest like this. Berne Article 20 says, "The Governments of the countries of the Union reserve the right to enter into special agreements among themselves, in so far as such agreements grant to authors more extensive rights than those granted by the Convention, or contain other provisions not contrary to this Convention. The provisions of existing agreements which satisfy these conditions shall remain applicable."

5.

Benefits of TRU

Normally undertaken by Public Authorities for public purposes, so potentially benefitting all Users.

6.

Possible digital support

Seems like a REL matter, requiring different rules to be applied for different countries.

7.

Requirements

respect for national differences

8. References