WIPO and the American Constitution: Thoughts on a New Treaty Relating to Actors and Musicians

Abstract

In this article, I conduct a First Amendment and Fifth Amendment analysis of recent efforts by the World Intellectual Property Organization (“WIPO”) to revise U.S. copyright law. My focus will be on the WIPO Treaty on Audiovisual Performances (the “AV Treaty” for short). The AV Treaty expands upon other efforts to make it unlawful to reproduce or use nonliteral material having substantial value to another person; display or perform another's fragmentary content having substantial value; or make a movie or YouTube video by transforming, recasting, or adapting another's work. Under WIPO's leadership, U.S. copyright law is moving to transfer more of the social value associated with copyrighted work to the copyright owner, and away from subsequent authors and consumers.

The article describes WIPO and its role in expanding copyright-like rights by means of the AV Treaty and statutes such as the Digital Millennium Copyright Act (“DMCA”). It analyzes key provisions of the AV Treaty for whether they change U.S. law, or merely globalize existing U.S. doctrines. Article 5 of the treaty states that independently of any economic rights, and even after the transfer of them, a performer has a right as to his or her fixed, live performances, “to object to any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation, taking due account of the nature of audiovisual fixations.” Article 6 seems to grant a broad new right to restrict the “communication” of unfixed performances not already broadcast, to which right some exceptions “may” be granted. Article 12 contemplates additional royalties to be paid to performers; irrespective of existing contracts relating to performances embodied in movies, songs, television shows, or video games. Article 15 of the AV Treaty could provide legal reinforcement to efforts to utilize digital rights management and technological protection measures so as to restrict the fair use of performances. Article 16 of the AV Treaty requires parties to provide civil remedies against those who negligently facilitate the availability or distribution of a performance, knowing or having reason to know that the credits or terms of use have been omitted.

The article describes the threat posed to the First Amendment by the AV Treaty’s proposed changes to U.S. law. The AV Treaty alters the traditional contours of copyright in the United States by introducing moral rights, and outlawing the making “available” of performances even without distributing them. The article analyzes these First Amendment threats using the rubric provided by Eldred v. Ashcroft. It also outlines the due process concerns that arise from the AV Treaty’s vague language and arbitrary distinctions. The statutory damages that may be available under U.S. law if ordinary copyright remedies are extended to performance rights will threaten the Excessive Fines Clause of the Eighth Amendment, as well as due process. Moreover, the Trans-Pacific Partnership Agreement may multiply all of the censorial provisions of the AV Treaty, by stating that criminal copyright infringement shall include instances of “related rights infringements that have no direct or indirect motivation of financial gain.” The AV Treaty may also interact with proposals such as the Stop Online Piracy Act, which would make it easier for executive agencies to seize web sites that have not been ruled to infringe copyrights, but that might facilitate acts of infringement.

Keywords: World Intellectual Property Organization, WIPO, audiovisual, performances, treaty, WCT, WPPT, phonograms, fixation, unfixed, authorship, copyright, fair use, First Amendment, Due Process, YouTube, Facebook, Pinterest, Twitter, eBay, Amazon.com, Google, Yahoo!, Flava, SOPA, moral rights

JEL Classification: B25, D11, E61, H23, K00, K11, K20, K21, K42, O34