International Judicial Monitor

Published by the International judicial Academy of the International Law Institute, Washington, D.C.
with circulation assistance from the American Society of International Law
Spring 2017 Issue

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100 Ways

International Law: One Hundred Ways It Shapes Our Lives

100 Ways Using the same software on computers worldwide by providing rights of distribution, copyright, and rental to authors of computer programs via the World Intellectual Property Organization Copyright Treaty (1996)

By: Jason K. Everett, Staff Writer, International Judicial Monitor

(In celebration of the 100^th anniversary of the founding of the American Society of International Law in 2006, the Society published a pamphlet titled International Law: One Hundred Ways It Shapes Our Lives. The introduction gives an explanation for its conception: an affirmation that: “international law not only exists, but also penetrates much more deeply and broadly into everyday life than the people it affects may generally appreciate.” This column seeks to elucidate and elaborate on many of the 100 ways briefly presented in the ASIL pamphlet.)

Copyright laws provide authors with the exclusive rights (for a limited time) to use and distribute their work. Stated briefly, the intent of copyright is to stimulate creativity for the general public good. This notion is based on the theory that absent the ability to protect creative works from unauthorized reproduction, use, and distribution there would be a chilling effect on the endeavors of authors.

Copyrights are granted by nations and are enforceable under that nation’s laws and through that nation’s courts. Until the late 1800s most authors had little recourse to protect their works beyond the jurisdiction in which they first obtained copyright (typically the jurisdiction in which the work was first published). Frequently, authors would attempt to obtain copyright in multiple nations by endeavoring to simultaneously publish their work in their home nation and abroad. Needless to say, these efforts were not always successful due to both the difficulty of simultaneous publication and varying copyright requirements across differing nations.

By the mid-19^th Century authors were clamoring for international agreements promoting formality-free cross-border copyright protections. There were far too many challenges when attempting to protect work abroad. These demands culminated in the Berne Convention (formally the Berne Union for the Protection of Literary and Artistic Works). This convention, drafted in September of 1886, provides, among other things, that countries recognize the copyrights held by the citizens of all other parties to the convention. This allowed authors the ability to protect their work in any nation that is a party to the Berne Convention so long as the work was initially published in one of the

member nations (or “simultaneously published” in one of the member nations up to thirty days from the original publication in a non-member country).

The World Intellectual Property Association Copyright Treaty, concluded in December 1996, expanded the understandings espoused in the Berne Convention. This was thought necessary due to advances in information technology. The Copyright Treaty provides for the protection of two subject matters under copyright: (1) computer programs (software), regardless of their mode of expression; and (2) compilations of data or other material (databases). Additionally, the Copyright Treaty grants authors the right to distribute their works, the right to rent their works, and a broader right of communication to the public. Furthermore, the treaty creates legal remedies against the circumvention of technological measures (e.g., encryption, digital rights management, etc.) used by authors to protect their work from unauthorized use, duplication, and distribution. Presently, 95 nations are signatories to the Copyright Treaty.

The Copyright Treaty affords authors the means to protect their work abroad. In doing so, it provides the freedom to distribute software with the assurance that unauthorized duplication, distribution, and modification will be actionable.

It can be assumed, however, that absent treaty protection authors, including individuals, and companies both large and small, would still likely distribute their software to the broadest possible market. In today’s fast-paced interconnected world it is almost guaranteed that valuable software will be copied and redistributed regardless of the breadth of initial distribution. Knowing that, it is far more beneficial for authors to offer a legal means to acquire software throughout the world than attempt to limit distribution. Thus, while the Copyright Treaty certainly enables companies to enforce their software copyrights in a great number of nations it does not necessarily provide for the breadth of distribution that authors undertake.

Interestingly, there has been criticism of the Copyright Treaty for taking too broad of an approach to digital rights management. By creating an environment in which authors are free to take whatever means necessary to prevent the unauthorized use, reproduction, modification, and distribution of their software products use of the same is inhibited well beyond that of other forms of copyrighted work. To this day, the over-reach of digital rights management systems continues to be a topic for great debate.

Ultimately, it is clear that the ability to protect software and databases under the auspices of copyright provides some level of security to authors who wish to distribute their work abroad. It can also be said, however, that the Copyright Treaty does not provide for the use of the same software on computers worldwide; the clear truth is that authors would likely distribute their work worldwide regardless of whether they had the support of courts abroad.

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International Judicial Monitor
© 2017 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
IJM welcomes comments, suggestions, and submissions.
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