WIPO and the American Constitution: Thoughts on a New Treaty Relating to Actors and Musicians
Vanderbilt Journal of Entertainment and Technology Law, Vol. 16 (2014)
58 Pages Posted: 19 Jun 2013 Last revised: 10 Jan 2014
Date Written: June 17, 2013
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 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
Suggested Citation: Suggested Citation