Download This PaperCopyright Harmonization in the European Union and in North America
'Copyright Harmonisation in the European Union and in North America', (1995) 20 Columbia-VLA Journal of Law & Arts 37-57; [1995] European Intellectual Property Review 488-496
In Spanish in 'La armonización del derecho de autor en la Union europea y en norteamérica' in M. Becerra Ramírez, (ed.), Der
22 Pages Posted: 27 Apr 2020
Date Written: 1995
Abstract
A general assessment of the importance of copyright based upon the two most recent North American trade agreements would lead to the inevitable conclusion that there is an increasing awareness of the role that copyright legislation plays in the achievement of trade liberalization.
Whereas the 1987 Free Trade Agreement between Canada and the United States contained only two articles that pertained to this field of activity - Articles 2006 and 2007 of that Agreement were designed to make the Canadian Parliament introduce a retransmission right in its scheme of copyright protection' - a full chapter of the North American Free Trade Agreement (NAFTA) is devoted to intellectual property rights and includes provisions on copyright law.2 What could have prompted such a development? One need not look very hard to find an answer.
Since 1986, members of the General Agreement on Tariffs and Trade (GATT) had been negotiating a new agreement on multilateral trade which, for the first time, was to include trade-related aspects of intellectual property rights (TRIPs).3 Both Canada and the United States had undertaken, in the 1987 Free Trade Agreement, to cooperate in order to increase the level of intellectual property protection in the GATT forum.
Although the inclusion of intellectual property negotiations in a multilateral trade agreement such as the GATT is a new phenomenon, international treaties bearing on intellectual property rights are not, and it can hardly be said that the existence of these agreements necessarily implies that regional trade agreements should automatically comprise provisions on intellectual property rights. Indeed, until recently the international conventions on intellectual property, such as the Berne Convention on copyright, were the sole international fora where intellectual property rights were to be discussed between more than two countries. Regional copyright agreements might have been perceived as unnecessary obstacles to the implementation of the international conventions by the national legislators. They might further complicate the inherent difficulties of national compliance with global requirements because of their intermediate position between the conventions and the national legislations.
In one part of the world, however, regional copyright standards have unabashedly come into existence. Since the publication of the Green Paper on Copyright and the Challenge of Technology in 1988,' the Commission of the European Communities has been working on directives that are designed to harmonize copyright law within the European Union. Four have been adopted,6 and three more are at different stages of elaboration! The European Union is undeniably a very active forum for copyright legislative activity, and its dynamism can only remind negotiators of other regional economic agreements of the need to include copyright policies within the framework of their discussions.
Although the European directives on copyright can be regarded as models of regional legislation in the field, the decision to adopt a regional stance in copyright matters does not require that harmonization need be effected through an identical process. Indeed while the NAFTA provisions on copyright are also aimed at ensuring a minimum level of protection throughout the North American region, the method chosen to reach this goal is quite different from the one that exists in the European Union. The reason for this difference lies in the contexts of the harmonization process itself (Part I), which in turn, affects the implementation of the copyright policies by the national legislative authorities (Part II). To speak of the copyright harmonization activities that have been occuring on both continents is to refer to two distinct courses of action.
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