National Treatment in Copyright and Related Rights: How Much Work Does it Do?

Abstract

The obligation of national treatment makes an appearance in all five of the major active multilateral treaties concerning copyright and related rights, including the Berne Convention, the Rome Convention, the TRIPS Agreement, the WIPO Copyright Treaty ("WCT"), and the WIPO Performances and Phonograms Treaty ("WPPT"), a group I will collectively call the "five CRR treaties." It is principally lauded for its substantive bite, as a rule requiring that treaty parties extend protection to non-nationals on the same terms as they do to their own nationals. Yet there are reasons to question whether the national treatment obligations imposed by the five CRR treaties remain of paramount importance in practice. Together, those treaties now contain both far more specific substantive minimum guarantees than the Berne Convention did in its first incarnation in 1886, and a variety of specific exceptions and limitations to national treatment. At the same time, the choice-of-law framework in which "national treatment" may have meant more than non-discrimination has been substantially transformed.

This paper reviews the operation of the national treatment principle in all major active copyright treaties, and assesses it continuing impact. Part I considers several aspects of the form of the national treatment rule in the context of copyright and related rights, and of intellectual property more generally. Part II considers the principal issues concerning the scope of application of the national treatment rule in the five CRR treaties. Part III offers some concluding remarks. Among those conclusions are that although national treatment continues to play an interstitial role in specific legal areas, its most important function may be as a symbolic carrier of the spirit of internationalism, a spirit that may be facing challenges as much from cultural preservationism as from economic protectionism.