Rethinking the Berne-Plus Framework: From Conflicts of Laws to Copyright Reform

Abstract:     
Globally, copyright laws are in crisis. How to rethink the international framework for copyright reform? The Berne Convention, plus the TRIPs Agreement and the WIPO Copyright Treaty, constitute this framework. If Berne-plus treaty terms are literally interpreted, they form a framework that leads to bundling rights and exceptions in the varying permutations of national laws. As a result, in a world of more powerful media and proliferating cross-border cases, diverse copyright laws increasingly risk entering into volatile conflicts. The Berne-plus framework then needs to be reconstrued to assure the globally coherent and equitable application of laws that, worldwide, are to be reformed pursuant to its conditions. This essay argues that, to that end, we need to reconceptualize copyright bundles in terms of a core author's right of communication. As a corollary, we need to move from multiplying exceptions to rights toward limiting rights definitionally. This essay analyzes how courts, in cross-border cases, may commence this paradigm shift.

Keywords: copyright, author's right, international treaties, conflicts of laws, core right

JEL Classifications: K11, K33, L82, O34

Accepted Paper Series