Document Type

Article

Disciplines

International Law

Abstract

A copyright is a property right that exists in an original work of authorship as soon as that work is fixed in a tangible medium of expression.' In addition to arising under American law, this property right is recognized in more than one hundred countries that are signatories of the Berne Convention for the Protection of Literary and Artistic Works ("Berne Convention" or "Berne"),2 the leading forum for international copyright protection.' As world markets have become globalized in recent years, the importance of copyright protection across international borders has increased greatly.4 Major exporters of copyrighted works, such as the United States, have a particularly strong interest in international copyright protection that successfully eliminates the piracy and counterfeiting that occurs in countries with ineffective copyright laws.

The advent of the North American Free Trade Agreement (NAFTA)6 and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)' that evolved out of negotiations for the General Agreement on Tariffs and Trade (GATT)' has initiated a new means of international copyright protection through the integration of copyright requirements into the framework of major trade-related multilateral agreements The purpose of the copyright provisions in NAFTA and TRIPS is to bring the relatively strict American copyright laws into conformity with their foreign counterparts. ° To achieve this consistency, the United States has allowed the reinstatement to foreign citizens certain copyrights that have fallen into the public domain for "noncompliance with formalities ...including failure of renewal, lack of proper notice, or failure to comply with any manufacturing requirements."" Specifically, NAFTA's copyright restoration provisions apply to works that are either motion pictures fixed or published in Canada or Mexico, or works included in such motion pictures. 2 Although the scope of these provisions is narrow, the potential constitutional ramifications of the changes in United States copyright law are widespread.

Effective since January 1, 1996, the copyright provisions in NAFTA and TRIPS, implemented in 17 U.S.C. § 104A, restore copyright status to works currently in the public domain and conflict with the long-standing tradition in the United States of maintaining the pool of readily available knowledge for the creation of new works. 3 Thus, the question naturally arises whether §104A will withstand constitutional scrutiny. First, removal of works from the public domain by the federal government will undoubtedly harm those parties who have made a substantial investment in the exploitation of such works. 4 Those parties may have a claim against the federal government for just compensation under the Takings Clause of the Fifth Amendment."' Secondly, because §104A restores foreign citizens' copyrights but not those of American citizens that have fallen into the public domain for the same reasons, the statute may be challenged on equal protection and due process grounds. 6 These two constitutional arguments have received attention from legal scholars and commentators, with most believing that the statute passes constitutional muster." But restoring the copyright status of works already in the public domain and imposing royalty provisions on reliance parties who have created derivative works based on the restored work may raise First Amendment free speech issues as well.'8 Determining whether §104A withstands a First Amendment challenge requires a fresh analysis of the internal safety valves that have largely immunized copyright from First Amendment scrutiny and, if applicable, the appropriate level of that scrutiny.

This note will give a background of United States copyright law and its relationship to international trade-based agreements, and then explore the First Amendment ramifications of the new §104A that resulted from these agreements. Part I surveys the history of copyright law in the United States, with an emphasis on the formalities necessary for protection. Part II discusses the evolution of international copyright protection in trade-related multi-lateral agreements and the consequences for United States copyright law. Part III examines the constitutional ramifications of § 104A in terms of the First Amendment right to free speech. This note concludes with the author's view that copyright's traditional exemption from First Amendment scrutiny should be rethought, and the copyright restoration provisions of §104A do not necessarily comport with the free speech values embedded in the First Amendment.

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