International Copyright: Principles, Law, and Practice Paul Goldstein OXFORD UNIVERSITY PRESS International Copyright This page intentionally left blank International Copyright Principles, Law, and Practice Paul Goldstein Lillick Professor of Law Stanford University 1 2001 3 Oxford New York Athens Auckland Bangkok Bogotá Buenos Aires Calcutta Cape Town Chennai Dar es Salaam Delhi Florence Hong Kong Istanbul Karachi Kuala Lumpur Madrid Melbourne Mexico City Mumbai Nairobi Paris São Paulo Shanghai Singapore Taipei Tokyo Toronto Warsaw and associated companies in Berlin Ibadan Copyright © 2001 by Paul Goldstein Published by Oxford University Press, Inc. 198 Madison Avenue, New York, New York 10016 Oxford is a registered trademark of Oxford University Press. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press. Library of Congress Cataloging-in-Publication Data Goldstein, Paul, 1943– International copyright : principles, law, and practice / Paul Goldstein. p. cm. Includes index. ISBN 0-19-512885-0 1. Copyright. 2. Copyright, International. I. Title. K1420.5 .G65 2000 341.7'582—dc21 00-024776 135798642 Printed in the United States of America on acid-free paper To Jan and Elizabeth This page intentionally left blank preface This book surveys the law of copyright between and among nations. Apart from applicable legal rules, the book describes the practices that animate international copyright and the principles that underlie it. The practicing lawyer engaged in licensing or litigating a copyrighted work abroad, or over- seeing the exploitation of a foreign work in his own country, will find guid- ance in these pages; so too will the researcher or student who wants to under- stand the forces that shape the copyright and neighboring rights laws of other countries and that control their interplay in the international system. National laws on copyright and neighboring rights are far more similar than they are different, a fact that makes it possible to treat the laws of many countries in a single volume. Widespread adherence to the Berne Conven- tion for the Protection of Literary and Artistic Works explains much of this harmony—140 countries today belong to the Berne Union—and the con- vergence of national law promises to grow closer still, as the TRIPs Agree- ment, with 135 adherents, brings national laws into more immediate com- pliance with Berne norms as well as with norms introduced by the TRIPs Agreement itself. For those cases where national laws diverge, the book closely analyzes the rules of private international law to guide determina- tions of applicable law. Because of the connection it connotes between one legal culture and an- other, no attribute of a legal rule or principle is more satisfying than univer- sality. A handful of universal principles underpin national copyright laws. One is the axiom that copyright law will protect only original expression, leaving ideas—the building blocks of creativity—free for all to use. Legisla- tion or case law in every country holds that a literary work’s themes, plots, and stock characters are unprotectible, as are discrete colors and shapes in visual art, and rhythm, notes and harmony in music. Every national law recognizes that to give one author a monopoly over such fundamental cre- viii Preface ative elements would overreward that author while at the same time stunt- ing the efforts of later authors. A second universal principle, freedom of contract, informs copyright trans- actions around the world. It is widely thought that contractual freedom is the prevailing norm only in common law countries and that civil law countries, by contrast, regulate copyright contracts closely. In fact, and as a rule, courts everywhere enforce copyright contracts according to their terms. Legislatures and courts have, to be sure, carved out exceptions to freedom of contract, but these exceptions are no more evident in civil law countries than in common law countries. The German Copyright Act, for example, will invalidate at- tempted transfers of the right to exploit a work in unknown technologies, but this exception to the prevailing German norm of contractual freedom differs only in degree from the general presumption against such transfers in the United States and, indeed, is a less severe inroad on freedom of contract than provisions in the United States Copyright Act giving authors a nonwaivable right to terminate their copyright transfers after a prescribed period. Writers commonly identify the “author’s right” tradition of civil law coun- tries with principles of natural right and the “copyright” tradition of com- mon law countries with principles of utilitarianism. Whatever force this di- vision may once have had—and it is not clear that the division was ever more than symbolic—it surely has little practical or intellectual force today. An explicit natural rights strain did not emerge in the literature on authors’ rights until late in the nineteenth century, well after the first enactment of copyright laws on the European continent; almost a century earlier, a dis- tinctly utilitarian ideology was already at play in the French revolutionary copyright laws. Similarly, while an indisputably utilitarian thread runs through much of the intellectual history of English and American copyright, so too does a vibrant motif that the author has a natural right to profit from his ingenuity and labor. The history of the legislative process in civil law and common law countries reveals that if philosophic inclinations play any role at all in copyright lawmaking, the more accurate division is between the principles that motivate the creation of new rights and the principles that inform the limitations on these rights. Protectionist impulses of natural right, not rigorous utilitarian calibrations, have historically characterized the cre- ation of new rights, and the extension of old ones, in common law and civil law countries alike, just as a pragmatic weighing of benefits and costs, with a particular focus on transaction costs, characterizes the imposition of limi- tations on rights—even moral rights—in civil law no less than in common law countries. Differences in legislative style partially distinguish the civil law and com- mon law systems, and I have chosen the French and German statutes and the British and American statutes, respectively, as the main objects of com- parison. The French and German statutes are, to be sure, no more typical of the civil law tradition than the U.K. and U.S. statutes are typical of the com- Preface ix mon law tradition. One reason for choosing these countries as the principal objects of consideration is that, taken together, they embody the dominant approaches to the protection of literary and artistic works around the world. (Diverging approaches taken in other countries are considered where appro- priate.) Another reason is that these laws are the most widely discussed in legal commentary. Each of the four laws also embodies an influential trait of the tradition to which it belongs. The French statute represents the dual- ist approach to author’s right, pragmatically separating the author’s eco- nomic rights (limited in time, transferable) from his moral rights (perpetual, nominally inalienable), while the German statute represents the monist approach, fusing economic and moral interests into a single right that is lim- ited in time and is at least conceptually inalienable. Britain’s legislation ap- proaches the continental model of its European Union partners in several respects—highly specific exceptions from rights, for example, though with a less robust moral right—while the U.S. legislation takes an even more stint- ing approach to moral right and a far looser approach to exceptions, as re- flected in its fair use defense. Human rights undeniably intertwine copyright, but the predominant forces that have shaped the law are economic. Global communities of eco- nomic interest among copyright owners have been far more potent than ideology—or, for that matter, than the preoccupations of individual nation- states—in forming copyright doctrine. In the world of copyright policymaking, a Canadian book publisher has far more in common with a Japanese book publisher than it does with a Canadian librarian who wants to make free photocopies for library patrons. When, through the latter part of the nine- teenth century, British authors and publishers pressed an isolationist United States to extend copyright to English works, it was American authors and publishers, not British readers, who rallied to their cause. Not all copyright principles are universal, nor are all divisions false. To take just one example, a distinctive commitment in the United States to individual autonomy in political and economic life has left a visible mark on the nation’s copyright law. American fair use doctrine, permitting the free use of copy- righted works under circumstances that other countries would find hard to excuse, clearly mirrors the special place of free speech in the American con- stitutional scheme. In excusing certain new technological uses of copyrighted works, fair use and other statutory exemptions also reflect the American resistance to collective administration—a common institution in Europe and elsewhere—as a solution to the transaction costs that arise at the intersec-