Droit et économie - Droit et économie de la propriété intellectuelle - 45

Globalization of Literary and Artistic Property

Section IV
the

contents of bilateral anD regional agreements

What is common to the existing bilateral and regional treaties is their inclusion
of the substance of the existing multilateral treaties, namely, for author's rights,
the Berne Convention, the TRIPS Agreement, and more recently also the WIPO
Copyright Treaty and, for neighbouring rights, the WIPO Performances and
Phonograms Treaty.29 This inclusion indeed has increased the number of parties
to the TRIPS Agreement and the WCT and WPPT, even if not all of the obligations in the bilateral and regional agreements extend to the accession to these
agreements rather than to the compliance with their substance. In addition,
most bilateral and regional treaties have included only general obligations, such
as an adequate and efficient protection and enforcement, without indicating any
details.
In contrast, the United States from the beginning on have drafted the treaties
at a high level of detail, and their precise wording often followed that of US
national law.30 In addition, the standard of protection has usually been higher
than the latest internationally agreed standards under the TRIPS Agreement and
the WCT/WPPT, respectively. In particular, the USA have included in these
agreements the provisions that they could not obtain in the multilateral negotiations. For example, while during the TRIPS negotiations, the US proposal to
introduce rules on the freedom of contract and on work-made-for-hire were
rejected by the other negotiating parties, the US achieved the introduction of
these provisions in the smaller framework of NAFTA and of bilateral agreements.
Similarly, during the negotiations of the WIPO Treaties, consensus was possible
only on a minimum standard for the distribution right allowing for international
exhaustion, while the USA had aimed for the prohibition of international
exhaustion. In its later bilateral treaties, the US was able to include the prohibition of international exhaustion and an importation right. Another example
is full national treatment of related rights, in particular covering the remuneration right for private copying, which was rejected in Article 4 (1) of the WPPT
but introduced by the USA in its bilateral agreements in very specific words.31
At the same time, the USA could achieve an exclusion of any obligation regarding
moral rights and thus again followed its own law and interests.
Given especially the agreements subsequent to the US' implementation of the
WCT and WPPT, one may observe a quasi-export of such national implementation rules into the laws of other countries by means of bilateral and regional
agreements, with all the details usually applied only to national laws. Of course,
29. Developments after 2009 have not been taken into account.
30. On the contents of US bilateral agreements, see S. von Lewinski, S. von Lewinski, International
Copyright Law and Policy, op. cit., 12.26 ff.
31. See, in particular, the Bilateral Agreement between the USA and Singapore, fn 16-4 to Art. 16.1(3);
see also S. von Lewinski, International Copyright Law and Policy, op. cit., 12.29.

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