A. US REGIME

1. Public Domain
2. Fair Use

a. Epistemological and methodological considerations: Is Fair Use Possible?
b. An economic analysis of Copyright and Fair Use: Is fair use desirable?

B. EUROPEAN REGIME

1. Points of Convergence in Anglo-American Law vis-à-vis the continent

a) Historical Origins
b) The Idea/Expression Dichotomy

2. Points of Divergence in Anglo-American IP Law vis-à-vis the Continent

II. THE INTERNATIONAL INTELLECTUAL PROPERTY REGIME

A. BERNE
B. TRIPS

1. TRIPs Stated Telos
2. TRIP's de facto  Telos
3. TRIPs Methods of Enforcement

Conclusion: Anarchic Polyphony

III. AREAS OF CONFLICT IN INTERNATIONAL IP LAW

A. TRIPS

1. Reverse Engineering
2. Software Patents
3. Plant and Genetic Data
4. Place Names:

Conclusion: TRIPs serves the interests of élites and is anti-democratic

B. FAIR USE

1. Does TRIPs spell the doom of Fair Use?
2. Can Fair Use and TRIPs be harmonised?

Bibliography
Articles
Books
On-Line Articles
Case Law
Statutory Law
Reference Works

Transformations in technology have radically reduced the cost of production and dissemination of information. The explosion of information technologies exemplified by photocopy machines, cassette recorders, computers, fax machines, and cd rom burners presents serious challenges to copyright law(1) both nationally and internationally. (2) These transformations have created a global market in information. The international system has accordingly created legal structures to govern that market (notably WIPO and TRIPs). But those structures are not always adequate to govern the new technological realities: First, they often depend on legal concepts which predate the era of instant world wide information (specifically the Berne system of conventions). The "new" structures thus merely incorporate the existing national standards. These facts create the potential for abuse by the creation of "double standards".

TRIPs reliance on national standards cannot create a unitary intellectual property (IP) regime because the common law and civil law systems are based on different rationales and presumptions which leads to legal plurality - and conflict. Differing systemic rationalles of IP in the US and the EU are not necessarily contradictory and could be reconciled. But TRIPs stated objectives of open trade and universal IP standards are also hindered by economic nationalism which results from competition and leads to the misuse of IP law as a form of veiled protectionism. Thus despite the practical reality of technological convergence - the blurring of boundaries between telecommunications, multimedia, cinema, television and internet - and the theoretical possibility of a convergence of common law and civil law, trade tension and legal conflict are inevitable.

The fact that trade law is abused to achieve protectionist ends, whether expressed legally as a fraud on the law or abus de droit, stands in fundamental contradiction to the free trade rationale on which international IP law is founded. Further the protectionism that contradiction presents is bad for the aggregate global economy. As Smith and Ricardo have shown, open trade benefits society as a whole but is also detrimental to certain elements of society, notably ineffecient, uncompetitive and protected businesses. This is illustrated in the table below:

RELATIVE BENEFITS AND DETRIMENTS OF OPEN Vs. CLOSED TRADE

                     OPEN  CLOSED
                     Trade Trade
Inefficient Industry $10   $20
Total Social Wealth  $150  $100

Source: Author

Inefficient domestic industries do better under closed trade ("protectionism"), though society as a whole does better under open trade ("free trade"). Thus open trade while socially beneficial is resisted. Yet overt protectionism is theoretically indefensible and so is often masked either by "cultural" or "environmental" or even "development" claims. While "environmental" and "ecological" concerns are legitimate in their own right they are generally used as facades for trade restrictions in the name of sub-optimal protectionism - and reduced social wealth. From a perspecctive of global wealth, the optimal trading system would be a generalized regime of free trade with specific exemptions to encourage third world economic development.

For these reasons the divergent and asymmetrical national rules in IP law present another instance of veiled protectionism. IP law is one more tool for consolidating US global hegemony and the dominance of US businesses in the fields of software, biotechnology, and cinema through the creation of a global trading system open in appearance yet based on closed proprietary information. To achieve this end the US has adopted a two-pronged strategy of information freedom in the US (the defensive prong of the strategy) and strong proprietary information overseas (the offensive prong of US strategy). This two pronged strategy tends to favor large companies generally and large US companies particularly and disfavors their competitors. This two pronged strategy goes too far however and will call into question the very hegemony that the US seeks to consolidate. However this strategic error of "overreach" can be corrected by a simple tactical retreat: The US merely would have to abandon its domestic defense of information freedom exemplified by the fair use doctrine. This tactical retreat would mean the end of the US as a "data haven" and the failure of the "defensive" domestic/consumer arm of the US IP strategy. However that tactical defeat would preserve a US strategic victory: even if higher standards of IP protection are imposed within "data havens" such as America (or China) via TRIPs, US companies will still maintain their dominance because of the stricter global IP regime created by TRIPs. The US strategy to consolidate its hegemony via open trade will only fail if domestic populist forces in the US force the US government to reject the WTO-TRIPs - for example, following a condemnation of the double information standard. Such an outcome would of course indicate a strategic defeat of US efforts to consolidate a global free trade regime and even the collapse of the WTO - and is thus entirely unlikely. Therefore the US strategy really cannot lose: even if the US is forced to reject the "defensive" free information arm of its strategy (the US as data haven), more restrictive IP laws abroad will remain in force guaranteeing the dominance of US IP industries. The costs of tactical retreat would thus be borne not by US transnational companies, but by consumers.

This raises our criticism of TRIPs which is threefold. First and most problematic is the fact that TRIPs will lead to proprietary data monopolies at the expense of consumers. Second, TRIPs may help to establish a double standard of information protection which favors US consumers generally and large US corporations particularly. Third TRIPs will confirm and maintain US dominence in IP markets. This last and weakest critique is contingent on the second and depends on a price model of monopolistic firms which is outside of the scope of this paper. This paper adopts as a hypothesis that entry costs and economies of scale indicate that the natural tendancy of capital is to tend towards monopoly. This paper also adopts as a hypothesis that monopoly pricing is determined by the threat of competition and the desire to have the highest price possible: monopolies price their product in direct consequence of competition or lack thereof. In other words, a monopoly or near monopoly will sell at the highest price possible which will not incite competition but in the event of competition will reduce price as needed to eliminate competition. Through price manipulation and legal double standards the US dominance of IP fields in culture and software and biotechnology will be able to eliminate competition.

These hypotheses do not lead to the self evident conclusion that monopoly is inefficient. Monopolies, according to this hypothesis are not inevitably inefficient with respect to consumers but can be contingently inefficient. Monopolies will only sell at prices favorable to consumers in the event of the threat of competition. Without at least the threat of competition monopolies will behave as rational economic actors and maximize profits by increasing prices. This is one of the many reasons this paper is hostile to the monopoly right granted by the state which is the essence of every IP claim. The necessity of competition and fairness argue against double standards and in favor of a unitary IP standard based on open information.

There is an easy method to defuse this unfair system which imposes monopolistic proprietary information(3) and double standards at the expense of the consumer. As we have already noted, US and continental European perspectives on intellectual property law are not necessarily nor inevitably in conflict. By expanding common law conceptions of intellectual property to include the moral rights of authors (droit moral) it would be possible to transpose the common law doctrine of "fair use" into the international arena. Such a transposition would better serve the interests of consumers and at the same time eliminate unfair double standards in IP law. A global fair use regime based on a reinterpretation of the fairness doctrine to include authors' moral rights would be seen as more legitimate and thus would be more likely to succesfully consolidate the liberal global trading regime. In contrast, the current US strategy, which seeks to impose a double standard, will necessarily be met with resistance which will undermine systemic legitimacy. Thus not only questions of justice, but also questions of realpolitik lead to the conclusion that the better way forward for internationl IP law is to reinterpret the fairness regime to account for author's droit moral, and to transpose the reinterpreted regime to the international arena via TRIPs.
 
 

While there is some commonality between Anglo-American common law and continental civil law conceptions of intellectual property there are also a number of striking divergences. Divergences occur not only at the level of positive law (object and duration of protection) but also in theory. However these theoretical divergences are not irreconcilable. Further, though there are significant divergences, there are also many points in common between the two legal systems. These common points form the basis of integration of the global intellectual property regime as implemented under TRIPs. We shall outline these divergences and common points in order to understand the causes of the tensions and the possible ways to resolve those tensions in the global intellectual property regime as manifested in TRIPs and the WTO.
 
 

A. US REGIME

Customarily, the common law provided limited protection for authors. The copyright was a monopoly, limited in time, granted to protect authors in the exclusive exploitation of their creative works. Thus at common law the general rule was no legal protection, with an exception for works which were both published and listed a copyright notice. (4) Even then the work had to be creative and original and the duration of the copyright was limited to 14 years. (5)

By statute in the United States this presumption is reversed. (6) Notice of copyright and publication are no longer required. (17 USCS § 104(a)) There is a presumption of protection. Further the duration of protection has been extended in time to the life of the author plus seventy years(7) (prior to 1998 the duration was fifty years - 17 USCS §302). (8)
 
 

1. Public Domain

Although the general rule today, unlike the past, is that creative writings are automatically protected under copyright without the requirement of copyright notice or filing, there are exceptions to the general rule of protection. First, and most importantly, is information in "the public domain". When a copyright on a work expires, the work is said to enter into public domain. Works in the public domain are not subject to copyright. US government publications are also considered in the public domain and as such can be freely reproduced witout cost or permission by any person (17 USCS §105). Although copyright of derivitive works of works in the public domain is permitted, the underlying source remains in the public domain.

While the public domain seems clear as a concept there are some ambiguities. Often this is due to underlitigation - since the public domain is "free" there are no battles over it. Thus whether public domain is defined as all that which is not subject to copyright - that is a definition in the negative(9) -or is an emanation of the common law (and ultimately Roman law) conception of "res nullius"(10) appears to be unanswered. (11) Ambiguity also appears in the court's case law doctrine (later incorporated into the copyright statute) of public domain in that the term has two different significations: "public domain" can signify either public lands or works which are owned by no one and which may be used by anyone. (12) Underlitigation also leaves unanswered the question whether an author can donate his work to the public domain. One theory argues that works can be "donated" to the public - and donation in the common law is irrevocable. Another theory argues that the copyright is in fact maintained, but that the author has given an unlimited license to the work. This question is relevant for derivitive works since a public domain donator might later wish to revoke that donation to prevent derivitive works. Under the former theory revocation of the donation would be impossible, under the latter it might be if, for example, the license was at the will of the licensor.
 
 

2. Fair Use

Another major exception to the presumption of copyright is the "fair use" doctrine. (13) The doctrine of fair use is not a recent development in US law. In fact the fair use doctrine in the US was first elucidated by justice Storey and definitively traces its roots to British common law. (14) Fair use, like copyright, is predicated upon an economic rationale: (15) Fair use exists to remedy market failure: (16) and new technologies make mass copying inexpensive and represent a potential market failure. (17)

The fair use doctrine can be expresed most simply in terms of economic equilibrium analysis: when the benefit to society of breach of the authors' monopoly outweight the benefit to the society of the author's monopoly plus the benefit to the author of such monopoly, the information may be used despite the fact that it would otherwise be the monopoly of the author. (18) This fact normatively describes the position of law and economics and empirically tends to demonstrate that position: that law is developped as a function of its tendancy to maximize social wealth. (19)

The fair use doctrine is both more necessary and more contentious in the contemporary global market than it was in the past when markets were still national or regional and copying was costly. This is because the cost of copying information is now approaching zero as is the cost of diffusing such information. Information can now be diffused instantly and globaly at almost no cost. This is in fact common practice: in the internet, images or sounds are downloaded and uploaded, sometimes edited, (20) sometimes commented and sometimes linked back to their source or to other works. Are such derived works or links permissible? According to fair use, possibly: Internet authors who "borrow" images without permission but then "link" the image back to the source would be more likely to be considered as "fair users" as would editors or comentators about images. Citing the source and/or advertising the source can weigh in favor of finding a use "fair". (21)

The fundamental principle, that fair use consists of a balancing of economic interests, is expressed by the court more precisely. The court has defined the four factors which determine whether a use is fair as follows:

The fair use guidelines are flexible - if not indeterminate.

This flexibility, while it permits the court to decide cases on their individual merits, can also be criticized as capricious, unprincipled, and prone to abuse - a critique which can be levelled at balancing test generally. (24) Is that critique valid? Is fair use fair?

To answer that question, we must understand the epistemological foundations of fair use. That will also allow us to determine the possibilities and limits for fair use as a solution to the problem facing global IP law via incorporation into TRIPs.

TRIPs multivariate balancing test is, like many other balancing tests in US law, founded upon the legal realists' rejection of binary "bright line" categorical analysis in favor of multivariate balancing tests. Though the realists' rejection of bright line categorical analyses is not in fact well founded, fair use is still epistemologically solid. The fact that the realists epistemology leads them to a general methodological rejection of categorical analyses is not equivalent to finding the methodology proposed by realists, interest balancing tests, to be necessarily, or even generally, ill founded. Balancing tests, like bright-line categorigal analyses, are only contingently well founded but can be well founded depending on terminological certitude and empirical verifiability.

Current legal epistemology incorrectly rejects "bright line" categorical tests (e.g. "copyright"/"not copyright") on the following grounds: While categorical analyses are unambigious they are at best teleologically blind and at worst teleologically vicious. When teleologically vicious formal manipulations are nothing more or less than the mask of class dominance. When teleologically blind formal manipulations ignore whether substantive outcomes are in fact just and elevate the procedural form over the substantive result. The realists conclusion is a methodological rejection of categorical bright line analysis such as "copyright/no copyright" in favor of "balancing tests" such as fair use. Their rejection is however ill founded.

Categorical analyses require an exact methodology, i.e. terminological and empirical certitude, and strict application of formal logic. Since the realist revolution of the 1930s, those methods are criticised and generally rejected as rigid formalism. However the realists' rejection of formal logic is overly-simplistic: the realists ignore that formal logic and empiricism are perfectly compatible as methodological tools in the search for truth. If balancing tests, favored by the teleological interpretation realism prescribes, can be evaluated and determined according to objective empirical evidence then so too can "bright line" categorical analyses. There is no empirical difference between determining the "weight" to be assigned to a "factor" in a multi-variate balancing test and determining whether a "bright-line" "threshold" has been crossed. At the empirical level, the realist argument that flexible "balancing tests" are better than "formalist" "bright-line tests" is empty.

We have just shown why the realist critique is overly-simplistic. We shall now show why that critique goes to far. The realists argue that formal logic is at least abused if not misused. Logic can of course be abused. However the realists ignore that formal logic is only contingently and not necessarily manipulable. (25) The manipulability of formal logic is contingent upon a combination of terminological inexactitude - which can exist - and intellectual dishonesty: It is not inevitable. If all formal logic were merely a manipulation designed to mask the raw exercise of power, then no logical argument would be admissible. (26)

That premise however is self-contradictory and leads to a conclusion which voids most nihilist discourse. It is also empirically untrue: even tyrannies seek to justify their exercise of power, and in some cases the justification is valid. Just as no regime is entirely just, no regime is entirely injust.

The above described logical contradiction defuses most nihilist discourse whether such discourse is presented as legal realism or post modernism. Many post-modernists raise irrationalist arguments similar to the realists: Members of both those schools of thought assert that there is no truth or that all truth is relative. That position leads however to the conclusion that one must reject logical argument! The antinomy in either case (legal realism or post modernism) is that it is illogical to use logic to argue that one cannot or should not use logic. If there is no truth, or if all truth is relative (to what?) then statements such as "there is no truth" or "all truth is relative" are logically empty of meaning. The antinomious conclusion is however the necessary, i.e. inevitable, conclusion which most post modern and realist epistemology leads to and must lead to if we take their assertions of truth nihilism or relativism seriously - and not as a mere sensationalist foil for a healthy truth scepticism which they generally are.

Although the position of realists and post-modernists taken to its logical conclusion does in fact lead to an impermissible antinomy, a qualified realism is admissible. The statement "The abuse of formal logic leads to some injustice" is perfectly admissible i.e. that statement is formally valid - and is in fact empirically true and possibly even necessarily true. The statement "The use of formal logic always leads to injustice" is a) empirically untrue b) logically antinomious. The first, a qualified realism, is admissible and does not overstate the realist critique. The second is not: it goes too far. (27) Truth sceptics and realists have some points - logic can be, and sometimes is, manipulatted. But truth sceptics and realists should be careful not to take their points too far lest their nihilism also annihiliate their own discourse via the antinomy described. That annihilation necessarily occurs whenever realists or post modernists assert a truth statement purporting to negate the existence of truth statements. This annihilation happens for example when they attempt to simultaneously assert that: "All moral values are relative" and "No truth exists". Those two statements are in fact logically incompatible. They cannot be asserted simultaneously in logical discourse. They are antinomious - the former heterologically the latter autologically.

This leads to the conclusion that the linguistic indeterminacy and supposed flaws of formalism which led to the replacement of "bright line" categorical tests by interest balancing tests - which can be ambiguous - (what factors are chosen? what weight are the factors given? how is that weight measured?) such as fair use were not as grave as realism proposes. Thus realism is an imperfect solution to an ill-defined problem: Interest balancing is just as manipulable as "bright line" categorical hermeneutics.

Despite flaws in the relativists' positions, their arguments are so successful that contemporary axiology generally limits itself to market values and ignores "subjective" moral values. Economic analyses are ascendant because they can claim scientific objectivity and thus legitimacy. Economic arguments are, or at least appear to be, empirically quantifiable, and therefore verifiable and thus objective. Thus in the search for substantive justice legal realism has given judges the necessary tools to allow the deployment of their subjective will - without however any moral telos to guide that will. So the realist critique, which is ultimately a critique of formalism's supposedly absent teleology, falls apart for lack of foundation. The teleological critique of formalism presented by realism depends upon an objectivist axiology which realism itself helped to destroy! (28) If all moral values are merely subjective then only economic values are scientifically objective, i.e. quantifiable and verifiable. Thus the judicial willpower realism unleashses is now exercised to serve the interests of the wealthy.

How is this epistemology relevant to fair use? Contemporary legal epistemology generally is at least sceptical toward the existence of truth and rejects the existence or at least the cognizability of objective moral values. If "no truth exists" or "all values are relative" - statements which we have shown to be logically void, i.e. meaningless, but which are nonetheless in vogue because they are shocking and their less extreme versions are well founded - then economic empiricism is the only remaining scientific argument - which explains the contemporary ascendancy of economic analyses. Thus in anglo-saxon copyright law the subjective moral rights of authors have little "weight" in the face of "objective" economic considerations. Correcting a flawed methodology would be one step toward harmonising fair use and droit moral.

Rather than arguing within the presumption that economic value is the only value or the only objective value, methodological critiques of fair use would best question the epistemology upon which balancing tests such as fair use are founded. An epistemological critique of the realists and post modernists is possible because truth negationist epistemology is incorrect. True statements do in fact exist. It is true that not all arguments are verifiable, and that not all arguments are falsifiable. It is also true however that some arguments may be verified, or at least falsified, and that not all arguments which are falsifiable necessarily imply a verifiable contrary position. Having established the objectivity of its epistemological foundations, the best critiques of fair use will then attack the methodology of balancing tests. First they will question the (pseudo...) emprical foundations of balancing tests generally. The questions: Which factors are to be chosen? What weight are they given? are ultimately determined by judicial willpower - which negates the supposed objectivity off "value free" empiricism. Next the methodological critique will point out that balancing tests are as vague and manipulable as categorical analyses - and possibly more so, after all there are more terms to play with.

Despite these possible attacks, we nevertheless conclude that fair use is epistemologically and methodologically speaking well founded:

1) The realists epistemology can be defended, though only in a qualified manner. Though truth negationism is inadmissible truth scepticism is permissible.

2) The realists' methodology, balancing tests, is no more (or less) "objective" than categorical bright-line analyses.

3) The realists' methodology is not capricious, or at least no more capricious than categorical analyses, because it is empirically grounded upon data which are often, though not necessarily, quantifiable and verifiable.

For these reasons we also conclude that it is possible to transpose the fair use standard into international law as it is epistemologically and methodologically well founded. Whether such a transposition is necessary, desirable, and consistent with international law is considered in the remainder of this essay: In the next section we shall see from an economic analysis that the fair use exception to copyright maximizes social wealth and that its transposition into international law is thus desirable.
 
 

b. An economic analysis of Copyright and Fair Use: (29) Is fair use desirable?

Though one can attack the economic foundation of fair use as pseudo-empricism, if economic quantifiability, and thus verifiability, is admissible then we must conclude that an economic analysis of fair use justifies that doctrine as fair use tends to maximize social wealth.
 
 

i. Justification of the Fair Use Doctrine via Economic analysis of Law

The rationale of copyright is that information production and diffusion are antithetical: measures to encourage information production discourage information diffusion and vice verse.

For example, granting information monopolies will encourage the production of information - discovery or creation - but will discourage the reproduction of that information - copying. On the other hand, allowing free reproduction of information - encouraging diffusion, would also discourage the creation through discovery or invention since there would be less reward for creation.

This paper does not agree with that classical rationale. It presents a sceptic's critique that economic analyses are sometimes only pseudo-empirical due to empirical difficulties of evaluation of worth and macroeconomic measurement. This paper argues that the particular facts of the internet indicate that economic incentives to produce and disseminate information are not contradictory but are mutual reinforcing due to derived works and synergies. (30)
 
 

The relation between information quantity and quality of information as a "trade-off" is illustrated below:

Production possibilities frontier for information supply

This graph also demonstrates the empirical limitations of macro-economic market analysis. Macroeconomic analysis is often limited to estimations and is not perfectly precise. This chart does illustrate the point that analyzing the information market is difficult in part due to the fact that changes in available information have the effect of shifting the production possibilities frontier. In other words, the information supply curve is dynamically reactive. Essentially the internet "shifts" the information production possibilities frontier dramatically to the right, allowing for the low cost instant global diffusion of information.This effect of new information technology on the information supply curve is shown below:

Curve 1 shows the production possibilities prior to technological innovation. Curve 2 shows the effect of a new technology increasing productivity on the production possibilities frontier.

These graphs are simplified because of the empirical limitation of economic models to which we add a further caveat: Economic analyses of information and information technology markets are heterogenous. We do not see one uniform good "information" but a range of possible goods "high quality (?) restricted (i.e. expensive) information" or "lower quality (?) open (low cost or free) information" in differentiated markets (books, television, movies, cd roms, sound recordings, video recordings etc., etc...). If we nevertheless accept that an economic analysis can give at least a rough guide for public choice, i.e. an acceptable range of possible values with definite maxima and minima then this paper hypothesizes that the aggregate supply and demand curves for information look something like this:

Price

Demand

Supply

Saturation
 
 
 
 

Quantity

The problem of proprietary information is that granting a property right over information limits diffusion of that information: although available information could be distributed more openly it is not, in order to encourage the creation of new information. However, much of the protected and thus restricted information would be produced even if there were no legal protection at all! This can be shown when one considers the ready availability of open source software. Operating systems, word processors, graphic arts applications, games... virtually every application which one could desire is available via the GNU open source licensing system. Rather than encourage the creation of new information, restrictions on information such as copyright only guarantee that the proprietors of that information will be able to extract rents from those clients who are unaware of the existence of alternative sources of information or information technology such as GNU. This explains why this paper rejects the classical economic rationale - that IP represents a necessary protection for authors - in favor of a more modern economic rationale which recognizes that points out that IP is an a monopoly granted by the state leading to entry costs and transaction costs which reduce aggregate wealth. If new technologies shift the production possibilities frontier dramatically to the right, the monopoly which IP law represents pulls it back to the left - to the detriment of society as a whole.
 
 

ii. The Chicago School's efficient capital market hypothesis

While this paper disagrees with the classical economic dichotomy of information production versus dissemination it recognises that the key contemporary "problem" in IP is that Information can be produced and copied and distributed globally at little or no cost beyond production. This fact of low costs in the production and diffusion of information tends however to support the Chicago school's efficient capital market hypothesis (ECMH). While we are critical of ECMH the fact that free information improves the efficiency of capital markets is one more argument in favor of free information. We raise our critiques of ECMH since they show the tensions of IP and its implications for other fields. We also discuss ECMH because even if the classical view that information production and dissemination were dichotomous were true the freedom of information would still be desirable as it leads to more efficent capital markets: and consumption, according to the neoliberals, leads production. Although in fact the ECMH is only partially correct because some market imperfections are inevitable due to the inevitability of cyclicity and unemployment (Milton Friedman), the ECMH proposition that free information leads to greater efficiency is true. Thus freedom of information is desirable even were the production and diffusion of information dichotomous because that freedom leads to greater capital market efficiency.

The ECMH proposes that information is a perfectly distributed good and that there are no transaction costs in information. (31) However while information is almost instantly available at very low costs, finding and using that information is neither instant nor costless nor evenly distributed. Further the Chicago theory ignores the existence of false and misleading information, as well as the inevitability of some transaction costs such as legal formalities and translations. (32) The Chicago theory also ignores market entry costs. Although thinly capitalized start up companies are normal in the English speaking world, this is not the case in civil law jurisdictions. Further even if a thinly capitalized company can enter the market with low costs, it is still limited by material capital requirements for production such as machinery, vehicles, and land. So while information costs are dropping all the time, entry costs and transaction costs have not been eliminated. Thus capital markets are not perfectly efficient. (33) However instant global information does tend to improve capital market efficiency and for that reason should be encouraged: While markets are not as efficient as the Chicago school proposes, they could be rendered more efficient by reducing the protections of copyright which would lower costs of market entry and transaction costs.

Having considered the epistemological and empirical problems of the fair use doctrine we now turn our attention to the possibilities and problems for legal transformation via a study of the law and practice of internet copyright.

iii. Customary law and public domain of information published via internet

If free information makes good economic sense then what legal structures can or could support such a rule? One argument in favor of the free use and copying of information on the internet is that such copying is already widespread in practice and thus constitutes customary law. At its simplest the argument runs that trying to enforce internet copyright is impossible. A more refined argument is that internet copyright violation is largely in good faith. The best argument is that there is a legally binding custom that information published via the internet shall be presumed to enter thereby into the public domain. This argument, while very attractive, will be shown to be legally unpersuasive

The definition of customary law in the roman law, civil law, and common law is nearly identical: a usage is a generally accepted practice of a society adopted and observed over time. If a usage is also believed to be obligatory, i.e. sufficiently widespread and ancient then the usage eventually becomes, as a matter of law, obligatory. Custom is "A usage which had acquired the force of law." (34)

The argument is that because free copying is a practice sufficiently widespread as to constitute a usage and believed to be legally permitted, that the practice of internet copying constitutes customary law. However custom in the common law is required to have been historically dated from "time immemorial". So there probably is no customary law here since the relevant time has not passed. Further custom canot be asserted in opposition to a contrary statute - and such a statute does exist. The practice of downloading and uploading is by definition very recent. Thus while this author does observe the practice of wholesale copying and linking on the internet, more often than not made with the innocent but mistaken belief that such copying is legal, and thus objectively believed to be the legal standard, such a usage has not yet ripened into customary law because a contrary statute exists. Further even if the statutory bar of such a custom could be avoided through a very broad interpretation of fair use, a claim of customary public domain still faces the question as to whether all custom must date from "time immemorial" - the correct position, at least under common law - or whether "new" customs can arise - which is in fact the case of international law. So the argument that information should be legally free in theory because it is in practice while intriguing is not valid - at least not yet.

A related argument to public domain via customary law would be an assertion that internet information wrongfully acquired can enter into the public domain via prescription. However prescriptive claims require around 20 years of open, notorious and adverse possession to ripen into good title and, traditionally at least, concern only real property.
 
 

iv. Proposed Standard: Rebuttable presumption of public domain over information published on the internet
 
 

While the juridical argument for public domain via custom or prescription are weak, there are good economic arguments for adopting such standards. Public domain via custom or prescription would be a practical legal mechanism to achieve a socially beneficial economic outcome. This paper does not go that far however. Rather it proposes that there should be a a rebuttable presumption that information posted to the internet enters the public domain thereby or can at least be further copied for diffusion via internet, for reasons of economy. Allowing the free reproduction of information - where such is already technologically possible - maximizes wealth not only of society but also of individuals in society. Information which is not distributed is as useless as any other undistributed good. Even more importantly information is different from physical goods in that it is not eliminated by consumption. True and accurate information actually increases in value as it is diffused and used.

The presumption of transfer to public domain via internet publication can be supported in that the internet was created by the state. The argument can also be supported by allowing "owners" of information the opportunity to rebut the presumption by taking the necessary practical steps to prevent the copying of "their" information. Technologically speaking if a producer wishes, he can keep his information publicly available for consultation only. This is accomplished through the use of Common Gateway Interfaces (usually written in Java or Perl though CGIs have been written in hyperCard using hyperTalk) and also through java (as opposed to javaScript) applets. The CGI or applet essentially is programmed by a programmer to permit distribution of the information but to prohibit downloading the information.

Scripting a CGI or Applet to guarantee the proprietary nature of information is no more an undue burden on those who wish to appropriate information than the cost of building fences, walls, locks, and other methods of protecting and preserving exclusivity in one's tangible property. While CGIs and Applets are slightly more difficult to code than javaScript or HTML the difference is not that great. Thus when weighing the interest of the public in having low cost, high quality, accurate information against the interest of private appropriators in rent seeking to take advantage of suboptimal conditions created by transaction costs, it seems rather clear that the burden of elaborating CGIs and Applets (which could then be sold) rightly belongs on the shoulders of the appropriator - and that the freedom of information rightly belongs to the public.

Information should be free, for only then can it be useful. Unlike other products information cannot be consumed, only used, and increases in value with diffusion. If information appropriators wish to seek rents they can do so quite easily by using closed source methods such as applets and CGIs. Further protection can be added by creating systems of passwords, or by authorizing access only to subscribers - such as AOL, one of the most proprietary, and succesful, internet services.

Essentially the conflict is between the public interest in the optimum mix of low cost and high quality information and individual creators or appropriators of information who are rent seeking. Favoring the latter can lead to sub optimal situations of semi-monopoly. Such rent seeking is best illustrated where each individual injury is de minimis, yet the sum of these injuries over thousands or millions of individuals translates into millions of dollars. The transaction costs of litigating each individual persons interests are far higher than the potential gains to individuals, whereas the costs to the appropriator to maintain their monopoly is much less than the benefit which accrues to them because of that monopoly. Rent seekers thrive off of sub-optimal economic situations, and proprietary information encourages this (domain name squatting, the "anti" virus business, and even piracy-for-profit are all examples where transaction-costs encourage sub-optimal outcomes).

We have seen from this brief study of US copyright law that:

1) US copyright law is based ultimately on an economic theory -- that copyright should be defined by the economic effects of that right which should be to encourage wealth creation and distribution.

2) As a consequence, US copyright law is ambiguous because it is based on "balancing tests" which weigh different "factors" (which factors? what weight?) and are manipulable.
 

We will see however that the US law is somewhat less proprietary than European law in that the fair use exception can be very wide. We will also note that the US regime has lower transaction costs than the European regime since it recognizes only very limited moral rights of authors over the integrity of their work ("droit moral")(35)

B. EUROPEAN REGIME(36)

1. Points of Convergence in Anglo-American Law vis-à-vis the continent
 
 

a) Historical Origins

The first point of commonality between the two systems is their historical origin. The origins of copyright, both in common law and civil law, are found in feudal laws licensing printers to publish books(37) as a derogation from or concession of the royal authority. In that system the censorship and prior restraints were presumed as the rule. Publication was possible, but first had to be granted approval by the royal government.

This presumption has of course been reversed with the industrial revolution. Today the presumption is that publication is legitimate and any limitations upon publication are exceptions from that general principle.

This shows that information freedom is a relatively recent concept. Ironically the post industrial era of information based production retains the principle of freedom of information, but limits it severely through regimes which permit the appropriation of information. Thus information freedom is now threatened not by the state but by the private sector.

Historically the appearance of national law systems and legal codifications markes the the end of medieval feudal law and the beginning of contemporary national law. It is also the point where the different national regimes of IP law become more clearly defined and thus diverge. We shall now discuss those points in Anglo-American IP law which diverge from continental law.
 
 

b) The Idea/Expression Dichotomy

As we have mentioned there are both theoretical and practical points of commonality between the Anglo-American "copyright" and the continental European "droit de la propriété littéraire/Urheberrecht". One of these commonalities is the idea/expression dichotomy.(38) Essentially intellectual property law protects expressions of ideas but not ideas as such. Further both continental European and US law protect, albeit to different extents, inventions (patent) writings (copyright), trademarks, trade secrets, and most recently designs and models, using similar legal mechanisms.

Epistemologically however the idea/expression dichotomy can be criticised. As currently concieved, IP law is epistemologically unsound as it adopts incoherent definitions.

First, the idea/expression standard breaks down when analyzed critically. This can be seen most easily in computer programs. Any computer program can be shown to be an algorithm, i.e. a mathematical function - and thus an idea. Any computer scientist will admit:

1) All computer programs are mathematical functions.

2) Every mathematical function is an idea.

Thus no mathematical function would be able to be copyrighted because it necessarily must fail the "idea"/"expression" test. Numbers, letters, colors, and mathematical functors cannot be copyrighted - yet any computer program is a mathematical function.

In fact, any expression can be characterised as an idea. The distinction between "idea" and "expression" rests on a false presumption that a combination of ideas creates an expression somehow different from those ideas. How many ideas must be combined before the "idea" becomes an "expression"? This question is not answered by copyright - because it is unanswerable. Copyright meet the same problem of censorship: no one can define an "original expression", or the difference between "idea" (number, geometric form, color, musical note and ?) and "expression" (some combination of "ideas") but everyone claims to be able to recognize whether a given statement is an "idea" or "expression".

The requirement that the expression be "original" is also contestable. What is an original expression? How does one determine the "originality" of the expression? Can one distinguish an original expression from an idea? An "original expression" must be somehow "superior and anterior" to competing expressions of the same idea - yet not so "superior and anterior" as to be an idea. Where did the superior and/or anterior expression come from? Why is it superior? Why is it not an idea? The question is: "How specific or unique or different must an idea be in order to be considered an expression of some epistemologically prior idea?" To which there is no answer due to the problem of infinite regress.

The problematic nature of the "original expression"/"idea" dichotomy can be illustrated with a concrete example: one cannot copyright the color blue, nor squares: A painting of a blue square would probably lack originality and a blue square as a trade mark might not be sufficiently distinct to be a trade mark. But a series of pictures of a blue square which when seen in rapid succession create the illusion of motion would probably be an "original" expression.

Which brings us back to our point of origin: the theoretical indeterminicity of the specifity required to enable a judge to determine that an expression is sufficiently "original", yet not so original as to be an "idea" and thus capable of being the subject of a copyright. These distinctions necessarily break down since 1) every expression is necessarily also an idea 2) no expression can be shown to be "original" without thereby becomeing an "idea".

These facts show that copyright is merely a monopoly right given to a particular combination of existing ideas which serve a useful or aesthetic purpose. (39) This underscores the position of legal realism and shows that the real conflict in IP law is terms of trade.
 
 

2. Points of Divergence in Anglo-American IP Law vis-à-vis the Continent
 
 

The US perspective on intellectual property is utilitarian and economic. Copyright is granted because it encourages authors and inventors by rewarding them for their acts of creation. According to this rationale, copyright serves, and should serve, to maximize social wealth. (40) The economic foundations of US copyright law explain why the protection of authors in the US is less extensive than in Europe. (41) US copyright law contains only very limited rights of authors to the integrity of their person as expressed in the work. (42) Further these rights of personality are recent and not as extensive as their european homologues and subject to the US copyright act's §107 fair use exception. So while there is common ground for legal harmonization the general conception of copyright in the US and other common law jurisdictions is the economic right of an author to property as opposed to an emanation of their right of personality. (43)

This purely economic perspective is not without strife even within the US. Not because of the question of moral rights (droit moral) which are essentially unrecognized, but because of the question of the political right to freedom of speech. The first amendment to the US constitution guarantees the freedom of expression. However examples abound wherein US copyright law within the US has limited radical satirical critiques of American society. (44) From a critical perspective, copyright is thus one more agent of maintaining state dominance - but through "private" entities such Walt Disney Co. In such cases it is clear that property rights take precedence over free speech. (45) This despite the fact that the US Supreme court does recognize that state action can impose a prior restraint on commercial speech. Thus prohibitions of advertising are legal in the US. (46) However the case of private action which limits free speech through copyright and the contradiction that the assertion of a nearly absolute right to free of speech under the first ammendment and a copyright which in practice undercuts that supposed right is generally unrecognized. (47) In this author's opinion this "blind-spot" represents both the power and flexibility of an ideology founded on "private" "free" enterprise and the lack of conscious perception of that ideology which mutes critiques of it: Powerful enough to generate apparently compelling propaganda, yet flexible enough to systematically destroy any countervailing propaganda through the apparently neutral mechanisms of "the free market".

We have just seen why the US regime of intellectual property is contradictory: it generally forbids state action which imposes prior restraints on "speech" and even limits restraints on state action after publication. At the same time however, US copyright law can and does operate as a de facto (or even de jure) prior restraint on speech due not only to the force of injunctions, and fines, but also to the chilling affect presented by lawsuits.

The paradox of the state claiming little or no power over information yet enabling the private sector to control information is less evident in Europe than in the US. In Europe, generally, the limits imposed on the power of the state to restrict speech are not presented as absolute or fundamental. Thus there is less incongruence between the public and private spheres in European law.

This systemic coherence may be due to the different rationales each system espouses. While the US views intellectual property from an economic and utilitarian perspective, continental civil law considers intellectual property from a perspective of the author’s moral rights. (48) Thus rather than social wealth the focus in Europe is on the integrity of the person.

This is also one of the problems facing the international intellectual property (IP) regime - the European perspective of droit moral(49) and the US economic perspective are at times contrary. (50) While these rationales are very different, in practice concerns of each system - social wealth or integrity of the author and their work - do eventually surface in the other's legal reasoning. (51) However these "hidden foreign rationales" can in no way be seen as an actual integration of two different systems. While such paralells do present the possibility of rapprochement of the two systems, they are neither consciously expressed as such nor sufficiently extensive to be considered as either a harmonization or integration of these two different world views. In fact they demonstrate intra-systemic inconsistency and the need for inter-systemic harmonization.
 
 

Because of the different protections afforded by different states for authors and inventors under international law a universal convention was established in 1883 - the Berne Convention. (52) This convention is the point of departure of any discussion of international intellectual property law. It is the "keystone" or "centerpiece" of a number of conventions on intellectual, literary, and industrial property(53) and has gone through many incarnations, (Berlin, 1908, Rome, 1928). (54) However the other conventions either complete the Berne convention, extend its application (e.g. the Paris convention of 1971, (55) which extends Berne regime to industrial property i.e. patents, and to former colonies(56) - Art. 24), clarify its meanings or apply it to new areas (The WIPO Copyright Treaty is also implemented under Berne(57)) such as computers. They also use similar mechanisms, mutual recognition and enforcement via treatment of foreign authors as if they were national authors with a self-help remedy of non-recognition in the case of breach. Our principle discussion will thus focus on the Berne convention and its continuing role as the centre of the international intellectual property regime, as implemented via TRIPs.

Not only is the Berne convention the keystone of international intellectual property law, it is also incorporated via reference into TRIPs: Its enforcement is the object of the the World Intellectual Property Organization (WIPO). (58) The TRIPs/WIPO/Berne regime should be understood as an amalgam of various legal institutions and conventions which seek to create and enforce an international IP system along functionalist lines.
 
 

A. BERNE

While the Berne convention has existed since 1883, the US is a very recent signatory, having acceded to the treaty only in 1989. (59) The Berne convention establishes minimum standards of protection(60) but only minimum standards. (61) Member states are thus free to establish broader protection - though with the entry into force of TRIPss such broader protections must not be contrary to the free trade goals of the WTO.

The Berne convention does not codify an international law of copyright. (62) Essentially the Berne agreement can be understood as a form of mutual recognition and enforcement: (63) each member state agrees to protect other member state's intellectual property within their borders to the same extent as their national copyright holders. Thus for example if East Ruritania and South Ruritania were both member states of the Berne convention, an East Ruritanian would have the same rights as a South Ruritanian in South Ruritania, and vice-verse.

Mutual recognition is achieved through two mechanisms: first foreign nationals of member states of the convention are treated equally to nationals of the member state in question. Second each member state agrees to treat member states' nationals (and residents) at least as favorably as non-member state's ("most favored nation" status). (64) Thus, for example, if Britain accorded special protection to commonwealth copyright holders and it were a member of the convention it would have to extend such special protection to all other members of the convention.

Berne is grounded upon the presumption of a European law perspective of droit moral: intellectual property from this perspective protects, inter alia, the moral right of the creator to the integrity of their work. (65) Protection of the economic rights of the creator is seen from this perspective as a secondary goal.
 

In terms of legal culture and history, the emphasis of droit moral on authors' rights rather than the right of contract or of consumers can be understood as an outgrowth of the feudal origins of IP law. Commerce in latin countries was, and sometimes still is, viewed with scepticism as being "base". The latin countries have thus favored artisans and liberal professions rather than commercial enterprises as can be seen in their tax and commercial codes. In contrast commerce in the common law countries was always and remains not only honorable but the raison d'être of much legislation.

One can criticise the continental view as being founded upon inegalitarian medieval conceptions of social status. That perspective can be defended however as the common law on intellectual property can, and sometimes does, place people before profits. The economic goals of the utilitarian view and the moral goals of the continental view are not necessarily contrary: individual wealth and social responsability can be mutually reinforcing and could be reconciled. Creating such a synthesis of the common law conceptions of copyright founded on economic rationales and consumer rights with continental law's tendancy to favor the integrity of artists is one of the exciting challenges facing legal theorists and practitioners in this field. In a world rich in data, win/win solutions are possible.

Berne adopts and seeks to implement the continental perspective. Because it is founded on a perspective of droit moral, Berne limits the right of reproduction to a greater extent than the common law. Translations are an example of the limitation under Berne of the free diffusion of information in order to respect the author's rights. Under the Berne convention it is the author's exclusive right to authorize any translation of their work.

This illustration of the limits that droit moral imposes on authors can be criticized. It is not the position taken by the US. §103 of the US copyright would grant a copyright of the translator in his translation but not in the original work. (66) The position taken under Berne limits the potential for wealth creation and knowledge diffusion. Moreover it is not always practical: one cannot, for example, contact a deceased author to obtain their permission. Will their estate grant such permission - and if so at what cost? And if the author has sold the rights to the story has he also sold the right to authorize translations? And if he has sold that right, is it a failure to respect his moral person to permit unauthorized translations? Such are the practical and theoretical positions for which one might critique Berne's position on translations, in addition to the fact that limiting translations limits human knowledge making the humanity that much less intelligent. Knowledge, unlike other information, is not exhausted through diffusion and in fact only increases in value with diffusion which is why this author argues that information freedom should be a general principle of copyright law.

Whether one takes the normative position of free information or proprietary information the positive law is clear: : The US domestic law and Berne on translation are in conflict. Will this be litigated under TRIPs? If so the outcome would be an order to the US to change its domestic law - unless the doctrine of fair use be transposed into international law.

As well as its restriction on translations and parodies of existing works, Berne has been criticized on other grounds. While the principle of Berne, mutual recognition of national laws, enabled the convention to attract most states, its remedy has been characterized as "anemic":(67) In the event that a member state does not respect the Berne convention, other member states are free to retaliate by non-recognition of the non-complying state's intellectual property rights. (68) Although this "self help" goal was attainable it is not sufficient to enforce a regime based on global rather than local rules. Despite the origins of Berne in mutual recognition of national standards, the tendancy in international IP today is toward the establishment of universal standards. This tendancy is best exemplified in TRIPs and other areas of WTO law. The critique of the Berne enforcement mechanisms is thus not as strong as it used to be because of the TRIPs DSB procedures.

Although Berne can be criticized for too severely limiting information freedom, there are exceptions to the exclusive right of the author to permit transmission of their work. Berne provides exception to to copyright for teaching(69) and news. (70) This raises the question, discussed infra whether Berne and/or TRIPs could contain fair use exceptions? Our answer is affirmative, but our analysis must be deferred in order to expose the international IP system under Berne/TRIPs. This tension and the difficult transformation from national reciprocal standards under Berne to a universal global standard will be considered below.
 
 

B. TRIPS

As we have seen the remedy under Berne was inadequate for creating a global IP legal standard. Thus TRIPs seeks to create, through the dispute settlement mechanism of the WTO, an enforceable standard for global trade. TRIPs is administered by the World Intellectual Property Organisation. WIPO, an agency of UN,(71) is an umbrella organisation for the Berne, Paris and other multilateral treaties on intellectual, literary and industrial property. (72) In 1999 there were 153 member states in WIPO. (73) From these facts we can conclude that "TRIPs ... has become an integral part of the multilateral trading system. (74) What are the rationales underlying TRIPs? Will they interact to create a unitary global IP law system? If so will that system be desirable?
 
 

1. TRIPs Stated Telos

The stated mission of WIPO is to promote creative intellectual activity. (75) Encouraging such "creative activity" is to be achieved by lowering trade barriers. (76) While the first goal, promoting creativity, is defensible - and lowering trade barriers would do thatt - the monopoly right of patent or copyright is itself a trade barrier and thus contrary to free market liberalism. (77) It therefore be more coherent to state that the objective of WIPO is to reduce transaction costs involved in maintaining the trade barrier created by copyright, patent or other forms of intellectual property. Even if we presume that such were the actual goal and that creative activity is encouraged in any respect through monopoly over dissemination of the created work, that does not change the fact that such monopoly is a trade barrier.

This is not the only contradictory telos in WIPO: Other goals of WIPO have been stated to be free, predictable, and competitive trade. (78) These goals are however contradictory: Free trade is necessarily unpredictable. If trade is free than one cannot predict who will trade what where or when. Similarly "predictable" trade is necessarily uncompetitive. This is because predictable trade is administered by de facto or de jure cartels which fix prices and eliminate competition. The contradiction of "predictable competition" can be explained as a reflection of the anti-cartel perspective of US competition theory and the pro-planning perspective of European industrial policy. While those goals may or may not be laudable they are in fact contradictory.
 
 

2. TRIP's de facto Telos

Since the stated goals of the TRIPs agreement are contradictory we ask what the actual goals might be. This paper argues that the contradictions inherent in these stated goals imply that the actual goal of TRIPs is to establish a world proprietary regime in intellectual property regardless of the effect of such a regime on competition. That result is, in any event, the functional outcome of TRIPs: and we should presume that actual outcomes are intended outcomes. A unitary world IP regime would, incidentally, serve US interests in consolidating its global hegemony.

Both TRIPs and the US Digital Millenium Copyright Act consolidate US IP hegemony. (79) TRIPs consolidates US hegemony by extending the enforcability of US copyright. (80) The DCMA consolidates US hegemony by imposing liability on on-line service providers (OSPs) for the content they host. That makes OSPs agents of the state as enforcers of property rights(81) - thus consolidating the global IP regime.

The DMCA has been criticized as being an overly broad application of civil and criminal liability to faultless acts (decompilation for illicit purposes) or ommissions (failure to verify and remove illegal on-line content). Both TRIPs and DMCA are part of a US global strategy to favor large businesses within the US at the expense of foreign and small businesses. This strategy is essentially to establish the US as a data haven, where freer decompilation and transmission of data will permit industrial and commercial development. By the same logic, strongly enforced IP rights overseas will limit information freedom to impose on the rest of the standards which will hinder their competitivity and allow US companies to extract rents from their monopoly IP rights. For brevity this strategy will be referred to as the "double standard".

The attempt to impose a global "double standard" on freedom of information may not be able to be realised because of TRIPs. That is however irrelevant. The strategy seeks to favor not only US business but especially large multinationals. Consequently even if the double standards are striken by TRIPs, the US strategy still prevails. I.e. in a "worst case scenario" the US would no longer be a data haven, but multinational US companies would still retain their market dominance in computer software, entertainment, and biotechnology - and the property right to exploit that doominance. From the perspective of US business the two pronged US strategy cannot lose. From the perspective of the US consumer, the US strategy is a gamble and may win or lose. From the perspective of foreign consumers however the strategy is a no-win proposition. Foreign businesses may appear at first to benefit from strong IP laws but will not benefit as much as US businesses, particularly if the US two pronged strategy works to impose double standards. Thus foreign businesses are at best only "qualified" and relative winners - and will more likely than not be crushed, rapidly, by companies such as Microsoft, Intel, etc. as national monopolies become global.
 
 

3. TRIPs Methods of Enforcement

The legal mechanisms of the TRIPs agreement at first appear relatively familiar. Like the Berne convention(82) which it incorporates by reference, TRIPs provides for national treatment(83) and Most Favored Nation status. However where Berne was based on consensus, TRIPs is based on a quasi judicial system. (84) The TRIPs panel reports are automatically adopted.(85) Thus there will be less opportunity within TRIPs for the establishment of dual standards such as: fair use/decompilation within US boundaries versus neither fair use nor decompilation outside the US, software patents in the US but not in Europe, or different treatment of data banks. Whether TRIPs will help to eliminate existing double standards by imposing a global regime remains to be seen. But even if it does that the global IP regime would probably still be dominated by the US.
 
 

Conclusion: Anarchic Polyphony
 
 

Berne and TRIPs do not yet provide a universal standard: The law here, as elsewhere in copyright, (86) is characterized by anarchic polyphony. (87) Absence of clear rules in this field is in part a result of the economic stakes involved: the commanding heights of first world economies are information driven: computer hardware and software and biotechnology (plants, medicine, DNA sequencing), and avionics are all leading edge industries and are information intensive. While entertainment and culture is not a capital but consumer good it is nonetheless true that even in consumer markets the question of the right to consume or diffuse information is key to the contemporary economy. Because of the magnitude of the stakes involved, a consequence the transition from mutually enforced national standards to a globally enforced universal standard will be characterized by conflict. That conflict however will operate within the system and will neither threaten nor destroy the TRIPs dispute settlement mechanism.
 
 

We have seen that the US and European conceptualisations of IP law are founded on divergent rationales: economic efficiency (US) versus the moral rights of authors to the integrity of their person as expressed in their work. (EU) We have noted that the supposed rationales of the WTO and WIPO are in fact internally contradictory (partly a reflection of these different rationales), and that the United States trade strategy takes advantage of this duplicity in its efforts to impose a double standard favoring large companies generally, and large American companies particularly. Given these facts it is hardly surprising that there are contentious areas within the world IP system not only between élites and masses but also among élites. We will explore these contradictions in order to better understand their resolution through the development of an international fair use doctrine.
 
 

A. TRIPS

Though the mechanisms of TRIPs are generally familiar, we should note that the TRIPs agreement is the only WTO agreement that requires the members to automatically and definitively incorporate complex substantive legal structures into national laws. (89) As such it represents the stunning yet quiet victory of functionalist methods to achieve global federalism. Further, unlike other WTO legislation, (90) this surrender of sovereignty to an international administrative tribunal was not linked to any counterpart in social welfare legislation (91) such as poverty reduction, environmental protection or guaranties of social minima - although third world states are given morre time than first world states to comply with the orders of the Dispute Settlement Body of the WTO. The WTO is thus one more not so quiet victory of global capitalism over socialism. Unsurprisingly these facts lead to both leftist and populist discontent with the WTO. This general discontent reinforces inter-élite disputes over the substantive content of international IP law. The inter-élite disputes are focused upon several specific points of conflict. Those specific areas of conflict in TRIPs are in fact driven by national or continental interest. They are discussed in the following headings.
 
 

1. Reverse Engineering

Most computer programmers work in "high level" languages such as C or Pascal which resemble english. Some programs are written in "low level" assembler languge which is mnemonic instruction set readable only by specialists. In the former case the program must be compiled and assembled, while in the latter it need only be assembled. The result in either case is machine language - zeros and ones. However while compilation is irreversible, assembly is not. Assembled machine language can be disassembled into assembler (mnemonic codes) and read by trained persons. Machine code is virtually impossible for a human to read.

The cases involving reverse engineering generally involve the right to disassemble assembled machine language code (whether compiled and assembled - nearly universally the case - or generateed directly from assembler mnemonics). The US, which permits reverse engineering even under the DMCA, (92) pressured Japan and as a result decompilation is illegal in Japan. Similarly the US pressured the EU on reverse engineering. In the EU decompilation of copyrighted programs is permitted only to permit interoperability of programs. (93) Decompilation is however permitted(94) without condition under US law. (95)

No multilateral treaty exists adressing reverse engineering. (96) Thus absent a statute such as the European directive, (97) reverse engineering of software can be presumed to be legal under national law because Berne appears silent on the topic. Reverse engineering is not a violation of copyright because the idea represented by the program or schematic diagram is an expression, whereas the idea it embodies cannot be the object of copyright. (98) For this reason, reverse engineering is permitted under TRIPs. (99) This is of course an ideal situation for the US as competitors are relatively (EU) or absolutely (Japan) restrained (presuming they observe and enforce their domestic law). In other words, the US has partially succeeded in its objective of creating the US as a data haven - which seems, objectively speaking, unfair.
 
 

2. Software Patents

A further asymmetry in domestic copyright law working to the advantage of the US is the differential treatment of software in national law.

Under TRIPs, software is subject to copyright(100) although the availability of legal protection for databases - stored and indexed information - remains contentious. In Germany, databases are subject to 15 years of protection from creation. In the US under the 1976 copyright act databases lack "originality"(101) (17 USCS §102) and thus cannot, strictly speaking, be copyrighted. (102) Non-protection of databases may change under TRIPs, (103) but the DMCA did not enact database protection. (104) Though EU member states do not permit software patents, (105) under US law software may be both copyrighted (106) and patented; (107) TRIPs also permits patenting of software. (108) Once again the asymmetry provides a competitive advantage for the US since US IP has greater potential protection than its European competition. This can criticised as providing an unfair trade advantage to the US and thus could be litigated under the WTO's DSU.

Software patents can also be criticised on economic grounds as being an economic hindrance: Strong patent protection is a barrier to market entry(109) and thus discourages productivity. Software patents create an "anticommons". The anticommons is like Hobbe's state of nature - poor, nasty, and brutish. The anticommons is also like Babylon - each proprietor has one piece of useful information, but the transaction costs created by the patent regime prevent the socially useful combination of these different pieces! (110) If the commons is obliterated from lack of fences, the anticommons cannot be usefully farmed because of too many fences!

This raises another justification for denying patent protection of software: Suppose an author places his software in the public domain - and then a plagiarist decompiles the software and patents parts it. That would be perfectly legal under US law but is socially indesirable. There is a potential nightmare waiting when some patent "shark" decides to appropriate public domain software via patent. This demonstrates again that propertarian systems can generate as many problems as they purport to solve. All of these problems could be obviated by creating a fair use exception in patent to cure this problem of market failure(111) This would not however resolve the broader international problems. Such problems can only be solved through the creation of universal standards under TRIPs which should incorporate the US fairness doctrine, mutatis mutandi to account for authors' moral rights (droit moral).
 
 

3. Plant and Genetic Data

TRIPs provisions on patenting plant species and other genetic data have been criticized as essentially transferring wealth from the third world to the first world without compensation. (112)This has been one of the main points of contention in North South relations and is one focal points of leftist and populist opposition to TRIPs.
 
 

4. Place Names:

TRIPs has also been criticized by some businesses - for extending an IP right of exclusion to geographic place names. Thus, for example "Champagne" would only be allowed to be so named if it were produced in the Champagne region in France (113) much to the chagrin of US producers of "sparkling wine". This latest restriction on information freedom is justifiable however from a consumer protection perspective: it essentially amounts to consumer protection similar to trade-mark. This can be problematic however: Budweiser beer is brewed in the style of Budweis - thus TRIPs place names could deprive the leading US beer trademark of its IP in that mark. Strangely however no one seems to object when first nations such as the Apache see their nation's name used to describe a web server; or when other nation's such as the Blackhawk, Iroquois, or Kiowa see their nation's name used to describe US military helicopters. Do the Navajo or Xuni nations have an IP right to their distinctive adobe architecture and does a certain software company infringe thereon? This is one more example of how TRIPs favors élite dominance.
 
 

Conclusion: TRIPs serves the interests of élites and is anti-democratic

We conclude from these conflicts and the mechanisms for their (supposed) resolution that TRIPs serves the interests of élites and is anti-democratic. Berne merely establishes minimum national standards which protect the integrity of the author's work as well as the economic interests of authors. TRIPs, in contrast, examines intellectual property from a trade perspective. Though TRIPs proponents may claim that TRIPs "merely" incorporates and implements a more effective remedy for Berne violations than was provided under Berne, TRIPs in fact goes much further: TRIPs serves as the "core" of a global intellectual property regime which may purport to respect authors' integrity but which in fact will be directed to advancing the economic interests of the élites of the industrialized world. Droit moral is from this perspective, merely a one more trojan horse for opening trade and extracting resources from the third world. This alone would be insufficient to spark populist or leftist rejection of the WTO. However in combination with the other criticisms raised, including inter-élite conflicts, we can understand why the WTO generates vehement opposition.
 
 

B. FAIR USE
 
 

As should by now be clear, the common law fair use exception is a serious point of conflict between common law and civil law trading partners. In this section we first explore the extent of the problem - whether TRIPs spells the end of fair use. We then consider possible solutions to the conflict over fair use, namely whether fair use can be found in the Berne treaty.
 
 

1. Does TRIPs spell the doom of Fair Use?

The status of fair use under international law is uncertain. (114) Some commmentators argue that there is no doctrine of fair use in international law. (115) Others argue that although there is no current conception of fair use under international law,(116) international law should nevertheless develop such a standard. (117) Our position is that a number of points under both Berne and TRIPs evince the same considerations that justify the common law doctrine of fair use. We argue that the US domestic law should be judicially reinterpreted to bring fair use into line with US treaty obligations, notably the observation of droit moral mandated under Berne. We also argue that the fair use doctrine should be transposed to the international arena. Such transposition and reinterpretation will best serve the interests of the public (consumers).

As we have noted the US doctrine of "fair use", at least as presently interpreted, is incompatible with TRIPs. This is because "fair use", like all IP law in the common law system, is based not on the perspective of the moral right of the author to the integrity of their personality as expressed in their work, but upon an economic analysis of social wealth and thus provides less protection for authors and more protection for consumers. (118)

Despite the fact that fair use as currently understood is contrary to the Berne convention, the doctrine of fair use will not disappear immediately but only after much litigation and reinterpretation. One possible outcome could be to adopt a fair use standard internationally. The transposition of "fair use" to international law would however require reinterpretation of the doctrine to integrate author's moral rights (droit moral). That reinterpretation and transposition will not happen without pressure from the international community through TRIPs. This is because of US internal law which we now discuss.

While some states, e.g. France, are monist, and regard international law as superior to domestic law, this is not the case in the US: the US is a dualist regime. US Judges must interpret US law and international law to be consistent with each other. However where there are inconsistancies the US law shall control within the US unless the international law is considered "self executing", i.e. contains a provision for the immediate application of the law upon its adoption. Though the US is a signatory to the Berne convention, Berne has been declared both by congress and judges to be a non self-executing treaty. (119) This means that absent enabling national legislation, any conflict between the international and domestic law will be resolved according to the US domestic law. (120) This explains why TRIPs implies panel proceedings under the dispute settlement understanding (DSU) to correct US breeches of its treaty duties.

For this reason TRIPs does not trump domestic copyright law within US borders. (121) However the TRIPs enforcement mechanism (the dispute settlement understanding -DSU- of the WTO) means that TRIPs will slowly, gradually, and inevitably, force the US to incorporate and apply the Berne convention in domestic US law - though not without strife.

Some commentators have argued that TRIPs should give deference to cases of first amendment "free speech" and permit national judges to make determinations as to the applicability of TRIPs. (122) Given the scope and intensity of conflict in the domain of IP such recommendations are utopian. Such a policy, if it could be implemented, would however serve to help bring about the necessary harmonization of international IP law through transposing the US common law doctrine of fair use into the field of international law.

Because fair use as currently understood and applied is inconsistant with TRIPs we will probably see a case before the WTO which would litigate 107(c) of the US copyright act. (123) Given the unfavorable decision before the WTO regarding 110(5) of the US copyright act, it is conceivable that the US will be forced to abandon the fairness doctrine. However de facto compliance with TRIPs via judicial reinterpretation of fair use would be sufficient to meet US treaty obligations under TRIPs. (124) Such a reinterpretation is a necessary precondition to the transposition of the fair use doctrine to international law, since it is highly unlikely that US trading partners will accept a double standard which works to give the US an unfair competitive advantage. A fair use exception to TRIPs which considers authors moral rights would also be consistent with monist theories of international law. While the US is a dualist system, many other states are monist. Thus by applying the same standard within and outside of the US - a fair use doctrine which integrates authors' moral rights - the US would be able to more easily transpose the doctrine into international law - to the benefit of consumers everywhere.
 
 

2. Can Fair Use and TRIPs be harmonised?

If the US doctrine of Fair Use, at least as presently interpreted, is inconsistent with TRIPs, as asserted by some(125) what remains of the freedom of information? As we have already noted, Berne does provide a number of provisions which evince the same concern which is the foundation of the common law doctrine of fair use, namely freedom of information. Freedom of information interests are asserted in cases of teaching (art. 10(2) - But see art. 11 bis(1) ) and also for currrent news events (art. 2 bis(2) - public speeches; art. 10 bis public lectuures and adresses). It is even possible to argue that satires and parodies are not "adaptations". Ordinarily art. 12 of the convention requires authorization for adaptations - but if parodies and satires are not adaptations then they would be freely produceable. Because the right of parody is broader in the US than elsewhere, (126) if satire and parody are not adaptations then the permissive US standard would prevail, though only within the US. This then is only a potential exception, but it could be found if judges choose to exercise creative interpretation (willpower).

The strongest argument that Berne includes its own fair use exceptions is art. 9(2) which permits local legislation for reproduction where such does not interfere with the author's interests. Here we see an economic interest balancing test similar to that used in fair use, but with the interests extended to include the moral right of the author to the integrity of their work. Thus these provisions of Berne could be used to justify a modified fairness doctrine which would consider not only author's economic rights but also their right to the integrity of their personality (droit moral) and the work which it expresses.

Further arguments for the existence of an international law of fair use can be seen within the TRIPs convention itself, e.g. The WTO panel allows de minimis exceptions to copyright. (127) As to patent, TRIPs recognizes that patents should not impair the advance of technology and consequently that patents should not cover certain acts. (128) TRIPs Art 30 also provides limited exceptions to property holder’s rights, (129) and TRIPs art. 30 paralells art. 13. (130)

Thus through a wholistic interpretation of all existing legislation both at the national and international level it would be possible to interpret and develop an international law of fair use. Such creative interpretation would obviate the attempts to create a dual standard of free domestic/corporate information and proprietary foreign/consumer information. It would thus better serve the interests of consumers since lower entry costs would encourage wealth creation and competition rather than merely reallocation of existing wealth. In other words, the free market goals of competition and entrepeneurialship and the goal of consumer satisfaction are best served by policies which discourage monopolies of information - particularly when held by large monopolistic or monopsonistic firms.
 
 

In conclusion, we have seen how freedom of information in a variety of fields (fair use; decompilation/reverse engineering; parody; translation; software patents) favors US IP companies at the expense of their trading partners. Because of this inconsistancy US IP law violates the spirit, and probably the letter, of the TRIPs agreement. However the optimal solution in terms of consumer welfare is not to extend patent law protection of software to the laws of members APEC and the EU nor to eliminate the fair use exception. Rather the best remedy is to deny the legality of patent protection for software in the US while simultaneously extending the fair use doctrine to the international arena. Such a solution will not only encourage production and diffusion of low cost high quality information, it will also eliminate the unfairness of the double standard currently presented by US law. That double standard unfairly favors US companies - and risks thereby the ruin of the freedomm of information currently enjoyed by the US consumer under the fair use doctrine.

1) Jayshri Srikantiah "The Response of Copyright to the Enforcement Strain of Unexpected Copying Technology", NYU L. Rev. Vol. 71 No. 4, Oct. 1996, p. 1647.
2) Harold Reeves, Property in Cyberspace U. Chi. L. Rev. Vol. 63 No. 1, 1996 at 761. P. 799.
3) Richard Posner, Economic Analysis of Law, Boston: Little Brown & Co. (1977) p. 282.
4) For a good summary of the history of copyright law in the common law see: Bielfield & Cheeseman, Technology and Copright Law, New York: Neal Schuman Publishers (1997) p. 42.
5) Bielfield & Cheeseman, Technology and Copright Law, New York: Neal Schuman Publishers (1997) p. 42.
6) The US copyright statute preempts the state law of copyright. William Patry, Choice of Law and International Copyright, American Journal of Comparative Law, Summer 2000, Vol. 48 No.3 383, 387.
7) Cooter and Ullen Law and Economics, Reading: Addison, Wesley, (2000). p. 135.
8) CNET, "Copyright: Fair Use", http://www.builder.com/Business/Law/ss15a.html
9) "In many ways, our current conception of the public domain is that nobody affirmatively owns public domain materials. It is this unowned characterization that is somewhat at odds with a characterization of the public domain of intellectual materials as a commons."
"Neocolonialism, Anticommons Property, and Biopiracy in the (Not-So-Brave) New World Order of International Intellectual Property Protection" Keith Aoki http://www.law.indiana.edu/glsj/vol6/no1/aoki.html
10) Geer v. Connecticut, 161 U.S. 519 (1896)
http://www.snowcrest.net/siskfarm/tableoc.html#TC16
11) Geer v. Connecticut, 161 U.S. 519 (1896)
http://www.snowcrest.net/siskfarm/tableoc.html#TC16
12) Henry Black, Black's Law Dictionary. St. Paul: West (1979) (5th edn.) p. 1106.
13) Bielfield & Cheeseman, Technology and Copright Law, New York: Neal Schuman Publishers (1997) p. 61-62. The authors there devote several chapters to discuss fair use.
14) 9. F. Cas. 342 (C.C.D. Mass. 1841) (No. 4901) p. 182.
DanThu Thi Phan "Will Fair Use Function on the Internet?", Col. L. Rev. Vol. 98 No. 1, (1998) p. 169.
15) Jayshri Srikantiah, "The Response of Copyright to the Enforcement Strain of Unexpected Copying Technology", NYU L. Rev. Vol. 71 No. 4, Oct. 1996
P. 1658.
16) Wendy Gordon,"Fair Use as Market Failure", 82 Col. Law Rev. No. 8, 1600
17) Jayshri Srikantiah, "The Response of Copyright to the Enforcement Strain of Unexpected Copying Technology", NYU L. Rev. Vol. 71 No. 4, Oct. 1996, p. 1647.
18) Donald Johnston, Copyright Handbook, New York: R.R. Bowker, (1978) p. 88.
19) Mathematically that position can be expressed as: L = f(P) where L is law and P is productivity.
20) For a discussion of "Sampling" in the musical context see: Jeffrey H. Brown, "They don't make music like they used to", p. 195 in ASCAP Copyright Law Symposium. New York: Columbia University Press (1997).
21) Mathew Africa, "The Misuse of Licensing Evidence in Fair Use Analysis: New Technologies, New Markets and the Courts" California Law Review, July 2000, Vol. 88 No. 4 p. 1147, 1160.
22) The market affects analysis of fair use is criticized as circular; essentially every instance of fair use implies the existence of a market since the user could have purchased the right to use. The court can always find a market, namely in the person alleged to have infringed the copyright.
23) Mathew Africa, "The Misuse of Licensing Evidence in Fair Use Analysis: New Technologies, New Markets and the Courts" California Law Review, July 2000, Vol. 88 No. 4 p. 1147, 1148 and 1154.
24) "Intellectual Property Law Primer for Multimedia Developers"
(1994) by J. Dianne Brinson and Mark F. Radcliffe
http://www.timestream.com/stuff/neatstuff/mmlaw.html
25) Mathew Africa, "The Misuse of Licensing Evidence in Fair Use Analysis: New Technologies, New Markets and the Courts" California Law Review, July 2000, Vol. 88 No. 4 p. 1147, 1149.
26) This argument requires that one understand that contingent truth is only potentially true depending upon circumstances whereas necessary truths are true in all times and places.
27) A post-modernist paradox: If no truth exists, how can the truth that there be no truth exist? This alone should demonstrate the flaw of epistemological nihilism and/or moral relativism.
28) Though the statement "The abuse of formal logic can lead to injustice" is probably empirically true, it is not empirically true that "All formal logic is manipulable indeterminate and its application therefore leads to injustice." Statements like "all formal logic is necessarily manipulable, indeterminate and therefore its application leads to injustice" are indeed ambigous: but that ambiguity is due to the ambiguity of language and not mathematics. Mathematically:
P X : X = (M | I) --> ~J
is perfectly unambiguous and will evaluate to ~J if either M or I or both are true.
In pseudo-code this can be expressed:
if (m=1 or I=1) then L:=0
29) These facts help to explain some of the paralysis and cacophony in contemporary legal theory, especially in contemporary American legal theory.
30) For a good discussion of economics and the law see: Cooter and Ulen, Law and Economics, Reading: Addison Wesley, (2000), esp. pp. 128-129, 135-136 for copyright. Also see: Richard Posner, Economic Analysis of Law, Boston: Little Brown (1977).
31) Other commentators also argue that the fair use guidelines are not broad enough. Mathew Africa, "The Misuse of Licensing Evidence in Fair Use Analysis: New Technologies, New Markets and the Courts" California Law Review, July 2000, Vol. 88 No. 4 p. 1147, 1150.
32) For a good general overview of EMH as well as links to EMH articles seee: Investor Home "The Efficient Market Hypothesis & The Random Walk Theory" http://www.investorhome.com/emh.htm
33) Worapot Ongkrutaraksa "Efficient Capital Markets: A Review of Literature", http://www.geocities.com/WallStreet/Exchange/3663/Worapot09.html
34) Joint Impact , "Transaction cost economics – A summary" http://members.ozemail.com.au/~cgold/transaction%20costs.htm
35) Anonymous, The 'Lectric Law Library, http://www.lectlaw.com/def/c161.htm
36) For a discussion of author's moral rights under American law see: Carl Settlemeyer, "Between Thought and Posession - Artists' "Moral Rights" and Public Access to Creative Works", ASCAP, Copyright Symposium No. 41 New York: Columbia (1997). p. 370
37) For a good general overview see: RA. Weinknecht
"Grundlagen des nationalen und internationalen Urheberrechts"
http://www.haagen.de/_themes/copyrights/grundlagen_urheberrecht.htm
38) Ruth Okedji, "Towards an International Fair Use Doctrine" Col. Journal of Transnational Law Vol. 39 No. 1., P. 94. (2000)
39) Michael Lehmann, "TRIPs the Berne Convention and Legal Hybrids"
Col. L. Rev. Vol. 94, No. 7 Nov. 1994, P. 2627.
40) This is of course the general critique of legal realism: law is only the mask of power.
41) Ruth Okedji, "Towards an International Fair Use Doctrine" Col. Journal of Transnational Law,
Vol. 39 No. 1. p. 172. (2000)
42) Carlos Correa, Intellectual Property Rights, the WTO and Developing Countries
London: ZED Books (2000) p. 137.
43) The US copyright law recently provides for limited rights of an author which are similar to droit moral. These rights include the obligation of citation and that his work not be mutilated. However these rights are alienable. "Copyright Law of the United States of America", Title 17USC §106a http://www.loc.gov/copyright/title17/92chap1.html#1-36
44) For a discussion of the economic rationale of the common law versus the moral rights perspective of continental law see: Christine Chinni "Droit d'auteur versus the Economics of Copyright", ASCAP, Copyright Law Symposium, New York: Columbia (1997) No. 40, p. 241
45) Wendy Gordon, "A Property Right in Self Expression", 102 Yale Law Journal, No. 7, May 1993, 1533, p. 1535.
46) Wendy Gordon, "A Property Right in Self Expression", 102 Yale Law Journal. , No. 7 May 1993, 1533, p. 1536.
47) Rubin v. Coors Brewing Co. (93-1631), 514 U.S. 476, 1995). http://supct.law.cornell.edu/supct/html/93-1631.ZC.html
48) Wendy Gordon, "A Property Right in Self Expression", 102 Yale Law Journal, No. 7 May 1993, 1533, p. 1536.
49) Ruth Okedji "Towards an International Fair Use Doctrine" Col. Journal of Transnational Law, Vol. 39 No. 1. p. 172. (2000)
50) For a discussion of the rationale of droit moral see: Carolyn McColley, "Limitations on Moral Rights in French Droit d'Auteur", p. 422. ASCAP, Copyright Law Symposium vol. 41. New York: Columbia Univ. Press (1997).
51) Ruth Okedji "Towards an International Fair Use Doctrine" Col. Journal of Transnational Law, Vol. 39 No. 1. P. 172. (2000)
52) E.g., §106a of the US copyright act which incorporates limited rights of droit moral into US law.
53) For the full text of the Berne Convention (in English) see: http://www.law.cornell.edu/treaties/berne/overview.html
54) For links (in German) to the various treaties see:
Juristisches Internet-Projekt Saarbrücken, Abteilung Urheberrecht, "Normen"
http://www.jura.uni-sb.de/urheberrecht/normen/intver/
55) Berlin, 1908, Rome 1928. "The Rome Copyright Convention of 1928", http://www.eff.org/pub/Intellectual_property/bern_convention.treaty
56) Paris Convention (in English) http://www.wipo.org/eng/iplex/wo_par0_.htm
57) Ruth Okedji "Towards an International Fair Use Doctrine" Col. Journal of Transnational Law
Vol. 39 No. 1. P. 106. (2000)
58) WIPO: "WIPO Copyright Treaty", Art. 1. http://www.wipo.org/eng/diplconf/distrib/94dc.htm
59) WIPO: "WIPO Convention: http://www.wipo.org/members/convention/index.html
60) Ruth Okedji "Towards an International Fair Use Doctrine" Col. Journal of Transnational Law
Vol. 39 No. 1. p. 105. (2000)
61) Ruth Okedji "Towards an International Fair Use Doctrine" Col. Journal of Transnational Law, Vol. 39 No. 1. p. 106. (2000)
62) Tyler Newby "What’s Fair Here is not Fair Elsewhere" 51 Stanford Law Rev., No. 6, 1633 p. 1645. (1999)
63) Ruth Okedji, "Towards an International Fair Use Doctrine" Col. Journal of Transnational Law, Vol. 39 No. 1. p. 104. (2000)
64) WIPO "International Protection of Copyright and Neighboring Rights", http://www.wipo.org/eng/general/copyrght/bern.htm
65) This principle has been carried forward with TRIPs, WIPO: "International Protection of Copyright and Neighboring Rights", http://www.wipo.org/eng/general/copyrght/bern.htm
66) For an excellent summary of droit moral see: Karine Arnault "Le Droit Moral en Droit Communautaire dans la société de l'information", http://perso.wanadoo.fr/karine/memoires/memoire2.html#_Toc450459006
67) U.S. Copyright Office, Library of Congress Circular 14  Derivative Works http://www.freeadvice.com/gov_material/copyright-office-derivative-works-circular-14.htm
68) Tyler Newby "What’s Fair Here is not Fair Elsewhere", 51 Stanford Law Rev. No. 6, 1633 p. 1646. (1999)
69) Tyler Newby, "What’s Fair Here is not Fair Elsewhere", 51 Stanford Law Rev. No. 6, 1633 p. 1646. (1999)
70) Tyler Newby, "What’s Fair Here is not Fair Elsewhere", 51 Stanford Law Rev. No. 6, 1633 p. 1646. (1999)
71) Tyler Newby "What’s Fair Here is not Fair Elsewhere" 51 Stanford Law Rev. No. 6, 1633 p. 1647. (1999).
72) Abbott, Cottler, Gurry The International Intellectual Property System, The Hague: Kluwer (1999) p. 591.
73) Abbott, Cottler, Gurry, The International Intellectual Property System The Hague: Kluwer (1999)
P. 303.
74) Abbott, Cottler, Gurry The International Intellectual Property System The Hague: Kluwer (1999) p. 697.
75) Idem.
76) A7bbott, Cottler, Gurry, The International Intellectual Property System,
The Hague: Kluwer (1999) p. 303.
77) Abbott, Cottler, Gurry The International Intellectual Property System, The Hague: Kluwer (1999) p. 322.
78) "First, one should note that there is a deep contradiction between the definition of an 'intellectual property right,' that is, a state-backed monopoly handed out to individuals or firms, and the popular neoliberal vision that valorizes "privatization" and free market economics."
"Neocolonialism, Anticommons Property, and Biopiracy in the (Not-So-Brave) New World Order of International Intellectual Property Protection"
Keith Aoki http://www.law.indiana.edu/glsj/vol6/no1/aoki.html
79) Abbott, Cottler, Gurry The International Intellectual Property System, The Hague: Kluwer (1999) p. 316.
80) On OSP liability under DMCA see: Jonathan A. Friedman, Esquire & Francis M. Buono "Using the Digital Millennium Copyright Act to Limit Potential Copyright Liability Online", Richmond Journal of Law and Technology Volume VI, Issue 4, Winter 1999-2000.
http://www.richmond.edu/~jolt/v6i4/article1.html
81) Abbott, Cottler, Gurry The International Intellectual Property System, The Hague: Kluwer (1999) p. 909, 913.
82) Abbott, Cottler, Gurry The International Intellectual Property System, The Hague: Kluwer (1999) p. 913.
83) Abbott, Cottler, Gurry The International Intellectual Property System, The Hague: Kluwer (1999) p. 317.
84) Abbott, Cottler, Gurry The International Intellectual Property System, The Hague: Kluwer (1999) p. 591.
85) Abbott, Cottler, Gurry The International Intellectual Property System, The Hague: Kluwer (1999) p. 353.
86) Abbott, Cottler, Gurry The International Intellectual Property System, The Hague: Kluwer (1999) p. 353.
87) Alex Morrison, "Hijack on the road to Xanadu: The Infingement of Copyright in HTML Documents via Networked Computers and the Legitimacy of Browsing Hypermedia" Journal of Information Law and Technology Vol. 1, 1999. http://elj.warwick.ac.uk/jilt/99-1/morrison.html
88) Tyler Newby, "What’s Fair Here is not Fair Elsewhere", 51 Stanford Law Rev. No. 6, 1633 p. 1645. (1999)
89) Other authors have also noted the US attempts to impose its unilateral will by insisting on the autonomy of its laws despite adhesion to the Bern convention: The US copyright statute preempts the state law of copyright. William Patry, Choice of Law and International Copyright, American Journal of Comparative Law, Summer 2000, Vol. 48 No.3 383, 485.
90) Abbott Cottler Gurry, The International Intellectual Property System The Hague: Kluwer (1999) p. 719.
91) Ruth Okedji, "Towards an International Fair Use Doctrine" Col. Journal of Transnational Law, Vol. 39 No. 1. p. 83. (2000)
92) Ruth Okedji, "Towards an International Fair Use Doctrine" , Col. Journal of Transnational Law
Vol. 39 No. 1. p. 82. (2000).
93) 1201(f) Digital Millenium Copyright Act. Johnathon Band, "The Digital Millenium Copyright Act" http://www.arl.org/info/frn/copy/band.html
94) Tyler Newby, "What’s Fair Here is not Fair Elsewhere"
51 Stanford Law Rev. No 6, 1633 p. 1658 (1999)
95) Carlos Correa, Intellectual Property Rights, the WTO and Developing Countries, London: ZED Books (2000), p. 136.
96) Tyler Newby "What’s Fair Here is not Fair Elsewhere", 51 Stanford Law Rev. No. 6, 1633 p. 1654. (1999)
97) Tyler Newby, "What’s Fair Here is not Fair Elsewhere", 51 Stanford Law Rev. No. 6, 1633 p. 1653. (1999)
98) Carlos Correa, Intellectual Property Rights, the WTO and Developing Countries
London: ZED Books (2000) p. 133.
99) Carlos Correa Intellectual Property Rights, the WTO and Developing Countries, London: ZED Books (2000), P. 199
100) Carlos Correa Intellectual Property Rights, the WTO and Developing Countries London: ZED Books (2000) P. 199.
101) Michael Lehmann, TRIPs the Berne Convention and Legal Hybrids
Col. L. Rev. Vol. 94, No. 7 Nov. 1994, P. 2625.
102) The US copyright regime only permits the copyright of "original" works The US copyright statute preempts the state law of copyright. William Patry, Choice of Law and International Copyright, American Journal of Comparative Law, Summer 2000, Vol. 48 No.3 383, 387.
103) Ralph C. Losey, "Practical and Legal Protection of Computer Databases" http://FloridaLawFirm.com/article.html#copy
104) Michael Lehmann, "TRIPs the Berne Convention and Legal Hybrids" Col. L. Rev. Vol. 94, No. 7 Nov. 1994, p. 2629
105) Jonathan Band, "The Digital Millenium Copyright Act", http://www.arl.org/info/frn/copy/band.html
106) Michael Lehmann "TRIPs the Berne Convention and Legal Hybrids" Col. L. Rev. Vol. 94, No. 7 Nov. 1994
P. 2626.
107) Mark A. Lemley, Convergence in the Law of Software Copyright? Berkeley Technology Law Journal
http://www.law.berkeley.edu/journals/btlj/articles/10_1/Lemley/html/reader.html
108) Michael Lehmann, TRIPs the Berne Convention and Legal Hybrids Col. L. Rev. Vol. 94, No. 7 Nov. 1994, P. 2624.
109) Esslinger and Betten, "Patentschutz in Internet", CR 1/2000. p. 18. The authors there argue that TRIPs permits software patents while admitting that the BRD does not.
110) Maureen O’Rourke "Toward a Doctrine of Fair Use in Patent Law" Col. L. Rev. Vol. 100 No. 5, June 2000, p. 1179.
111) Maureen O’Rourke "Toward a Doctrine of Fair Use in Patent Law" Col. L. Rev. Vol. 100 No. 5, June 2000, p. 1179
112) Maureen O’Rourke "Toward a Doctrine of Fair Use in Patent Law" Col. L. Rev. Vol. 100 No. 5, June 2000, p. 1180.
113) Abbott, Cottler, Gurry The International Intellectual Property System
The Hague: Kluwer (1999), p. 65.
114) The International Intellectual Property System, The Hague: Kluwer (1999)
p. 185, 347.
115) Ruth Okedji "Towards an International Fair Use Doctrine" Col. Journal of Transnational Law
Vol. 39 No. 1. P. 87 (2000)
116) Ruth Okedji "Towards an International Fair Use Doctrine"
Col. Journal of Transnational Law, Vol. 39 No. 1. P. 160 (2000)
117) Ruth Okedji "Towards an International Fair Use Doctrine" Col. Journal of Transnational Law
Vol. 39 No. 1., p. 89. (2000)
118) Ruth Okedji "Towards an International Fair Use Doctrine"Col. Journal of Transnational Law
Vol. 39 No. 1. P. 168-169. (2000)
119) David Friedman, "Standards As Intellectual Property: An Economic Approach", http://www.best.com/~ddfr/Academic/Standards/Standards.html; Friedman and Lande, "SOME ECONOMICS OF TRADE SECRET LAW", http://www.best.com/~ddfr/Academic/Trade_Secrets/Trade_Secrets.html
120) Ruth Okedji, "Towards an International Fair Use Doctrine", Col. Journal of Transnational Law, Vol. 39 No. 1. pp. 138, 140, 145. (2000).
121) The US copyright law expressly denies any rights under Berne: 17 USCS § 104(c).
122) Ruth Okedji, "Towards an International Fair Use Doctrine" Col. Journal of Transnational Law, Vol. 39 No. 1. P. 142. (2000)
123) Tyler Newby "What’s Fair Here is not Fair Elsewhere", 51 Stanford Law Rev. No. 6, 1633 p. 1662. (1999)
124) For the full text of the US Copyright Act see:
http://www.law.cornell.edu/copyright/copyright.table.html
125) Ruth Okedji, "Towards an International Fair Use Doctrine" Col. Journal of Transnational Law
Vol. 39 No. 1. p. 131. (2000)
126) Ruth Okedji "Towards an International Fair Use Doctrine" Col. Journal of Transnational Law
Vol. 39 No. 1. (2000) p. 91.
127) Ruth Okedji "Towards an International Fair Use Doctrine" Col. Journal of Transnational Law, Vol. 39 No. 1. (2000) P. 134.
128) Ruth Okedji "Towards an International Fair Use Doctrine" Col. Journal of Transnational Law Vol. 39 No. 1. (2000) P. 147.
129) Maureen O’Rourke "Toward a Doctrine of Fair Use in Patent Law" Col. L. Rev. Vol. 100 No. 5, June 2000. p. 1201.
130) Maureen O’Rourke, "Toward a Doctrine of Fair Use in Patent Law", Col. L. Rev. Vol. 100 No. 5, June 2000. p. 1201 (q.v. Correa at p. 208); Maureen O’Rourke, "Toward a Doctrine of Fair Use in Patent Law" Col. L. Rev. Vol. 100 No. 5, June 2000. p. 1202.

Articles:
Mathew Africa,
"The Misuse of Licensing Evidence in Fair Use Analysis: New Technologies, New Markets and the Courts"
California Law Review, July 2000, Vol. 88 No. 4.
 

Jeffrey H. Brown,
"They don't make music like they used to", in
ASCAP Copyright Law Symposium
New York: Columbia University Press (1997).
 

Christine Chinni
"Droit d'auteur versus the Economics of Copyright",
ASCAP, Copyright Law Symposium No. 40.
New York: Columbia (1997)

Esslinger and Betten,
"Patentschutz in Internet",
CR 1/2000.

Wendy Gordon,
"Fair Use as Market Failure"
82 Col. Law Rev. No. 8, 1600

Wendy Gordon,
"A Property Right in Self Expression",
102 Yale Law Journal, No. 7, May 1993, 1533.

Michael Lehmann,
"TRIPs the Berne Convention and Legal Hybrids"
94 Col. L. Rev. No. 7, Nov. 1994.

Carolyn McColley,
"Limitations on Moral Rights in French Droit d'Auteur"
ASCAP, Copyright Law Symposium vol. 41.
New York: Columbia Univ. Press (1997).

Robert Merges,
"Of Property Rules, Coase and Intellectual Property."
Col. L. Rev., Vol. 94 No. 4. (1994)

Neil Weinstock Netanel,
"Cyberspace Self Governance: A Skeptical View from Liberal to Democratic Theory"
Cal. L. Rev. Vol. 88 No. 2 (March 2000)

Tyler Newby
"What’s Fair Here is not Fair Elsewhere"
51 Stanford Law Rev., No. 6, 1633 (1999)

Ruth Okedji,
"Towards an International Fair Use Doctrine"
Col. Journal of Transnational Law Vol. 39 No. 1., (2000)

Maureen O’Rourke
"Toward a Doctrine of Fair Use in Patent Law"
Col. L. Rev. Vol. 100 No. 5, (June 2000).

William Patry,
Choice of Law and International Copyright,
American Journal of Comparative Law, Summer 2000, Vol. 48 No.3 383.

DanThu Thi Phan
"Will Fair Use Function on the Internet?",
Col. L. Rev. Vol. 98 No. 1, (1998).

Harold Reeves,
"Property in Cyberspace"
U. Chi. L. Rev. Vol. 63 No. 1, 1996.

Carl Settlemeyer,
"Between Thought and Posession - Artists' "Moral Rights" and Public Access to Creative Works",
ASCAP, Copyright Symposium No. 41
New York: Columbia (1997).

Jayshri Srikantiah,
"The Response of Copyright to the Enforcement Strain of Unexpected Copying Technology",
NYU L. Rev. Vol. 71 No. 4, Oct. 1996.

"Bytes and Pieces: Fragmented Copies, Licensing and Fair Use in Digital Works"
Cal. L. Rev. Vol. 86 No. 4 (1998)
 

ON-LINE ARTICLES
 

Keith Aoki, "Neocolonialism, Anticommons Property, and Biopiracy in the (Not-So-Brave) New World Order of International Intellectual Property Protection"
http://www.law.indiana.edu/glsj/vol6/no1/aoki.html

Karine Arnault "Le Droit Moral en Droit Communautaire dans la société de l'information", http://perso.wanadoo.fr/karine/memoires/memoire2.html#_Toc450459006

Johnathon Band, "The Digital Millenium Copyright Act" http://www.arl.org/info/frn/copy/band.html

J. Dianne Brinson and Mark F. Radcliffe, "Intellectual Property Law Primer for Multimedia Developers" (1994)
http://www.timestream.com/stuff/neatstuff/mmlaw.html

CNET, "Copyright: Fair Use", http://www.builder.com/Business/Law/ss15a.html

David Friedman, "Standards As Intellectual Property: An Economic Approach", http://www.best.com/~ddfr/Academic/Standards/Standards.html

Friedman and Lande, "SOME ECONOMICS OF TRADE SECRET LAW", http://www.best.com/~ddfr/Academic/Trade_Secrets/Trade_Secrets.html

Jonathan A. Friedman, Esquire & Francis M. Buono "Using the Digital Millennium Copyright Act to Limit Potential Copyright Liability Online", Richmond Journal of Law and Technology Volume VI, Issue 4, Winter 1999-2000.
http://www.richmond.edu/~jolt/v6i4/article1.html

Investor Home, "The Efficient Market Hypothesis & The Random Walk Theory", http://www.investorhome.com/emh.htm

Joint Impact "Transaction cost economics - A summary",
http://members.ozemail.com.au/~cgold/transaction%20costs.htm

Mark A. Lemley, Convergence in the Law of Software Copyright? Berkeley Technology Law Journal
http://www.law.berkeley.edu/journals/btlj/articles/10_1/Lemley/html/reader.html

Ralph C. Losey, "Practical and Legal Protection of Computer Databases" http://FloridaLawFirm.com/article.html#copy

Alex Morrison, "Hijack on the road to Xanadu: The Infingement of Copyright in HTML Documents via Networked Computers and the Legitimacy of Browsing Hypermedia" Journal of Information Law and Technology Vol. 1, 1999. http://elj.warwick.ac.uk/jilt/99-1/morrison.html

Worapot Ongkrutaraksa, "Efficient Capital Markets: A Review of Literature" http://www.geocities.com/WallStreet/Exchange/3663/Worapot09.htm

R.A. Weinknecht "Grundlagen des nationalen und internationalen Urheberrechts" http://www.haagen.de/_themes/copyrights/grundlagen_urheberrecht.htm
 
 

BOOKS

Abbot, Cottler, Gurry
The International Intellectual Property System
The Hague: Kluwer (1999)

Beier and Schriker (Ed.)
GATT or WIPO? New ways in the International Protection of International Property
Munich: Max Planck Institute (1989)

Bielfield & Cheeseman,
Technology and Copright Law,
New York: Neal Schuman Publishers (1997)

Michael Blakeny
Trade Related Aspects of Intellectual Property Rights
London: Sweet and Maxwell (1996)

Cooter and Ullen
Law and Economics,
Reading: Addison, Wesley, (2000)

Carlos Correa,
Intellectual Property Rights, the WTO and Developing Countries
London: ZED Books (2000)

Graham Dutfield
Intellectual Property Rights, Trade and Biodiversity
London: Earthspan (2000)

Donald Johnston,
Copyright Handbook,
New York: R.R. Bowker, (1978)

Richard Posner,
Economic Analysis of Law,
Boston: Little Brown & Co. (1977)

Kluwer,
The International Intellectual Property System,
The Hague: Kluwer (1999)
 
 
 

CASES

Geer v. Connecticut, 161 U.S. 519 (1896)
http://www.snowcrest.net/siskfarm/tableoc.html#TC16

Rubin v. Coors Brewing Co. (93-1631), 514 U.S. 476, 1995). http://supct.law.cornell.edu/supct/html/93-1631.ZC.html

Folsom et. al. v. Marsh, 9. F. Cas. 342 (C.C.D. Mass. 1841) (No. 4901)
 
 

STATUTORY LAW

US LAW

US Copyright Act:
http://www.law.cornell.edu/copyright/copyright.table.html

"Copyright Law of the United States of America", Title 17USC §106a http://www.loc.gov/copyright/title17/92chap1.html#1-36
U.S. Copyright Office, Library of Congress

Circular 14  Derivative Works http://www.freeadvice.com/gov_material/copyright-office-derivative-works-circular-14.htm

GERMAN LAW

Juristisches Internet-Projekt Saarbrücken, Abteilung Urheberrecht, "Normen"
http://www.jura.uni-sb.de/urheberrecht/normen/intver/
 

INTERNATIONAL LAW

The Berne Convention (in English): http://www.law.cornell.edu/treaties/berne/overview.html

The Paris Convention (in English) http://www.wipo.org/eng/iplex/wo_par0_.htm

"The Rome Copyright Convention of 1928", http://www.eff.org/pub/Intellectual_property/bern_convention.treaty

WIPO: "WIPO Copyright Treaty", Art. 1. http://www.wipo.org/eng/diplconf/distrib/94dc.htm

WIPO: "WIPO Convention: http://www.wipo.org/members/convention/index.html

WIPO "International Protection of Copyright and Neighboring Rights", http://www.wipo.org/eng/general/copyrght/bern.htm
 

REFERENCE WORKS
Henry Black, Black's Law Dictionary. St. Paul: West (5th edn.) (1979)
"The Electric Law Library" http://www.lectlaw.com/def/c161.htm