This week’s guest blog concerns the national treatment principle that deals with the issue of non-discrimination in international intellectual property law. The blog provides a brief overview of the development of this eminent principle in international conventions protecting copyright. Dr. Danny Friedmann combines intellectual rigor with clever anecdotes in this blog. Find out why Charles Dickens complained about the unfairness of the massive piracy of his books in the United States and how a former copyright pirate like Belgium could transform itself to a copyright advocate.
Dr. Danny Friedmann is a researcher and lecturer of Intellectual Property Law based in Hong Kong. Danny Friedmann is the author of the intellectual property monograph 'Trademarks and Social Media, Towards Algorithmic Justice', Edward Elgar Publishing, September 2015. His blog 'IP Dragon', gathers and shares information about intellectual property law in China since 2005.
This article provides a brief overview of the development of national treatment in international treaties that protect copyright. The principle of national treatment or non-discrimination, to accord to nationals of another country treatment no less favourable than to one’s own nationals, originates from the golden rule, “do as you would be done by”, partly based on comity and partly on reciprocity. National treatment in multilateral agreements relevant to copyright protection, such as the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), has roots into bilateral copyright agreements of the 1800s. The contemporary mega-regional free trade agreements, such as Comprehensive and Progressive Trans-Pacific Partnership (CPTPP) and Regional Comprehensive Economic Partnership (RCEP), which all include national treatment in their copyright protection provisions, refer back to the Berne Convention and TRIPS.
In 1847, the American copyright, patent and anti-slave lawyer and author George Ticknor Curtis, described the implications of territorialism on copyright law in case one’s work was republished overseas:
“The actual law of nations knows no exclusive right of an author to the proceeds of his work, except that which is enforced by the municipal law of his own country, which can operate nowhere but in its own jurisdiction. As soon as a copy of a book is landed in any foreign country, all complaint of its republication is, in the absence of a treaty, fruitless, because no means of redress exist, except under the law of the author’s own country. It becomes public property, not because the justice of the case is changed by the passage across the sea or a boundary, but because there are no means of enforcing the private right.”
To protect authors’ works overseas, reciprocity was required and thus one needed to protect the works of overseas authors as well. In 1828, Denmark extended, by decree, the provisions of its copyright law of 1741 to foreign works, on condition of reciprocity. International treaties, could guarantee this. For example, between 1827 and 1829, the Kingdom of Prussia signed 32 of these agreements, which were based on formal reciprocity: every contracting party agreed to assume the treaty obligations because the other contracting party was doing the same.
In 1840, a bilateral copyright agreement was signed between Austria and the Kingdom of Sardina and in 1851 between France and the United Kingdom. These were based on material reciprocity; which established parity between the levels of protection accorded by each state to each other’s works. Material reciprocity made sure that a party needed to provide no stronger protection to the works of the other party than it or the other party would do.
In 1842, Charles Dickens went for the first time to the United States. The immensely popular British author gave lectures to American audiences on the unfairness of the massive piracy of his books. In the 19th century, many countries did not protect the copyright of foreign authors. At the time the United States was infamous for pirating the works from its former colonizer and so was Belgium for pirating works from France.
The French Emperor Napoleon III, declared by decree of 28-30 March 1852, that pirating of works is an offense and punishable under Article 425 of the Code pénal of 1810, on the French territory, of any work published abroad, without any condition of reciprocity. However, this legal altruism helped its authors’ interests, because between 1852 and 1862, France concluded twenty-three treaties for reciprocal protection of authors’ rights, nineteen more than in the previous decade.
Before 1854, foreigners could acquire copyright in the United Kingdom by first publication in that country. However, since Jeffreys v. Boosey, this was no longer the case if the author was not a resident in the United Kingdom at the time of publication. The case of Routledge v. Low of 1868, made it possible again on the condition that the foreigner was at least a resident anywhere within the British Dominions at the time of publication. Lord Chancellor Cairns and Lord Westbury’s dissenting opinion that foreigners could acquire copyright in the United Kingdom by first publication in that country, was held persuasive in Falcon v. Famous Players Film Co. in 1926, and held that the dissenting opinion of the two Lords was already the law of 1868, de facto overturning Routledge v. Low.
Belgium transformed itself from a copyright pirate to a copyright advocate: In 1858 it hosted the Brussels Congress of the Literary and Artistic Property, to explore whether countries can join each other in a multilateral agreement. At the time, the opinions on substantive copyright law varied widely. For example, some representatives at the Congress favoured perpetual protection, such as the publisher Hachette, while most wanted a limited duration so that after the expiration the work would add to the public domain. There was also no consensus on the scope of the subject matter.
On the initiative of the Société des gens de lettres de France, the International Literary Congress was held in Paris in 1878. Beside French and foreign writers, ambassadors and ministers plenipotentiary were present of Chile, Republic of San Marino, Republic of Salvador, Italy, Uruguay, Germany, Brazil, Switzerland, Portugal, Spain, United States, Bavaria and Austria-Hungary. Literary giant Victor Hugo was chosen to be president of the Congress. The goal of the Congress was to discuss international literary property law, so that works of the mind could be effectively protected. Edmond About, president of the Committee of the Société des gens de lettres, said during the opening that the Congress was trying to answer the question whether it was possible to draft a universal law that could be formulated thus: “that in all civilized countries foreigners would enjoy the same rights as nationals for the protection of works.” According to Resolution IV of the 1878 Congress: “Any literary, scientific or artistic work will be treated in countries other than its country of origin, following the same laws as works of national origin. It will be the same with regard to the performance of dramatic works and musical.” Resolution V 1878 Congress: “For this protection to be assured, it will suffice for the author to have accomplished in the country where the work was first published, the formalities of use.”
The Congress also decided to found the Association Littéraire et Artistique Internationale (ALAI), which still exists. ALAI organized some conferences, where the idea of universal copyright was explored. However, at the Conference in Rome of 1882, Dr. Paul Schmidt of the German Publishers’ Guild, argued that the time was not ripe for such a new international legal instrument. With success, Schmidt also suggested that a Literary Property Union should be created at a conference in Berne, just as the Universal Postal Union was established in the Swiss capital. In the years leading up to 1886, each year a conference was held in Berne in preparation of the Berne Convention for the Protection of Literary and Artistic Works. At the 1883 Berne Conference, national treatment was proposed in all contracting states for the authors of literary or artistic works which originated in a contracting state. At the 1884 Berne Conference, this national treatment was made subject to the limitation that the duration of this right was dependent on the existence of the copyright in the authors’ own country. The 1885 Berne Conference’s national treatment draft, expanded the temporal conditions to compliance with formalities. In 1886 the Berne Convention for the Protection of Literary and Artistic Works, was trying to put an end to the intricate “spaghetti bowl” of bilateral copyright agreements, and complex formalities in different countries.
Article 3 Berne Convention stipulates that copyright protection shall apply to the Berne Union-nationals, or non-Berne Union-nationals who have their habitual residence in a Berne Union-country or publish their work first or simultaneously in one of the Berne Union-countries.
There are exceptions to national treatment, for example Article 7(8) Berne Convention prescribes that the term of protection shall be governed by the legislation of the country where the protection is claimed. It allows for “comparison of terms”, the possibility of material reciprocity if the legislation where the protection is claimed requires this. Von Lewinski provides more exceptions to national treatment.
The General Agreement on Tariffs and Trade (GATT) 1947, dealt with trade in goods, and arguably more with the trade-related aspects of intellectual property rights, than with the intellectual property aspects of trade. GATT was succeeded by the Agreement establishing the World Trade Agreement (WTO Agreement), of which TRIPS is an integral part. One of the principles of GATT was national treatment (Article III GATT). GATT addressed trade in goods. Its national treatment referred to non-discriminatory treatment of “like products”. In contrast, TRIPS addresses intangible goods, and its national treatment principle addresses non-discrimination of persons, including authors.
Next to national treatment, TRIPS’ mother agreement, the WTO Agreement, inherited a binding and enforceable dispute resolution system from GATT. This is an important innovation over Berne Convention’s dispute resolution system at the International Court of Justice (ICJ), which can be binding only if both states agree, but states can also make a declaration at the time of depositing its instrument of ratification or accession that they are not bound to any ICJ decision, and both binding and non-binding decisions would be hard to enforce. Tellingly, Berne Convention-related dispute resolution via ICJ never happened.
Article 3(1) TRIPS prescribes national treatment: that each member shall not discriminate the nationals of other members in regard to the protection of intellectual property, subject to the exceptions already provided in the Berne Convention 1971. Any member that would like to restrict protection in respect of certain works of nationals of certain countries outside the Berne Union, according to Article 6 Berne Convention 1971, shall make a notification to the TRIPS Council. Article 2(2) TRIPS stipulates that members shall not derogate from existing obligations they might have to each other under the Berne Convention, including the basic principle of national treatment. Article 9(1) TRIPS is also relevant for non-Berne Union countries, since they have to incorporate Articles 1 through 21 Berne Convention 1971, which includes the Article 3 Berne Convention 1971-version of national treatment and the exceptions to that.
National Treatment of copyright is also a principle of the mega-regional trade agreements such as the CPTPP and RCEP.
Article 18.8(1) TPP stipulates that in respect to all categories of intellectual property, including copyright, each party shall accord to nationals of another party treatment no less favourable than it accords to its own nationals. Article 18.8(4) TPP allows the exceptions of multilateral agreements concluded under the auspices of WIPO, such as the Berne Convention 1971.
According to the Working draft of Article 1(5)(a) RCEP Chapter on Intellectual Property, the wording is very similar to the text of the TPP. However, the RCEP provision allows the exceptions provided not only in the multilateral agreements under the auspices of WIPO, such as the Berne Convention, but also those in TRIPS. Both the TPP and RCEP, interpret protection to include “matters affecting the availability, acquisition, scope, maintenance and enforcement of intellectual property rights as well as matters affecting the use of intellectual property rights specifically covered” in the respective chapters. Further, for the purposes of the respective paragraphs, protection also includes the prohibition on the circumvention of effective technological measures.
If one would see international copyright law as a tree, then some of the doctrines of the 1800s are in its centre, around it are the layers of the multilateral treaties; Berne Convention and TRIPS, and the youngest outer layers are formed by mega-regional free trade agreements, CPTPP and RCEP. With globalization, digitalization and the internet it seems that the time has come to take the final step to develop a truly universal copyright, without the possibility of comparison of terms. A unitary copyright law, with an acquis that clarifies which subject matter belongs to copyright and which to related rights, and uniform substantive and procedural law would solve this problem. By extrapolating the existing trend of increasing harmonization of copyright law at the EU level, Professor Hugenholtz observed that the end of the national copyright laws in the EU is nigh. A substantively and procedurally harmonized copyright law that makes a comparison of terms in regard to national treatment meaningless, would be an inspiring prospect for mega-regional free trade agreements, which have proved not to lack any ambition.
 In this article I do not distinguish between the Anglo-Saxon version of copyright, which is more based on natural rights and economic rights, and Continental author’s right, which stresses personality rights and moral rights. From a pragmatic point of view I use the term copyright for both.
 King James Bible: Matthew 7:12: “Therefore all things whatsoever ye would that men should do to you, do ye even so to them: for this is the law and the prophets.”
 UNESCO Universal Copyright Convention of 1952 and 1971 has lost most of its importance, since most countries are WTO members, and have to comply with TRIPS, and thus partly with the Berne Convention provisions. Besides, the U.S. has become a member of the Berne Convention in 1989. The Universal Copyright Convention uses the principle of national treatment, subject to the provisions of Articles III, IV and V on formalities, duration, and translation rights. Article IV(4) stipulates that in regard of duration national treatment is tempered by the comparison of terms: ie, that the duration shall be governed by the legislation of the country where protection is claimed; but that it shall not exceed the term fixed in the country of origin of the work. UNESCO UCC 1952. Available at: http://portal.unesco.org/en/ev.php-URL_ID=15381&URL_DO=DO_TOPIC&URL_SECTION=201.html.
 Berne Convention for the Protection of Literary and Artistic Works 1886 (amended 1979; date of the text 28 September 1979; entry into force 19 November 1984). Available at: http://www.wipo.int/treaties/en/text.jsp?file_id=283698.
 TRIPS is Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization, signed in Marrakesh, Morocco on 15 April 1994. Available at: https://www.wto.org/english/docs_e/legal_e/27-trips_01_e.htm.
 The legally verified text of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) was released on 21 February 2018. Available at: https://www.mfat.govt.nz/assets/CPTPP/Comprehensive-and-Progressive-Agreement-for-Trans-Pacific-Partnership-CPTPP-English.pdf.
 Draft RCEP Intellectual Property Chapter, 10 October 2014. Available at: https://www.keionline.org/wp-content/uploads/RCEP-TNC6-WGIP3-ASEAN-Draft%20IP%20Text-10Oct2014.pdf.
 GEORGE TICKNOR CURTIS, A TREATISE ON THE LAW OF COPYRIGHT IN BOOKS, DRAMATICAL AND MUSICAL COMPOSITIONS, LETTERS AND OTHER MANUSCRIPTS, ENGRAVINGS AND SCULPTURE AS ENACTED AND ADMINISTERED IN ENGLAND AND AMERICA WITH SOME NOTICES OF THE HISTORY OF LITERARY PROPERTY (London: A. Maxwell and Son, 1847) 22. Available at: https://ia802302.us.archive.org/12/items/atreatiseonlawc00curtgoog/atreatiseonlawc00curtgoog.pdf.
 Samuel Ricketson, The Birth of the Berne Union, 11 COLUM.-VLA J.L. & ARTS 9 (1986).
 Bilateral Treaty between Austria and Sardinia, Vienna (1840), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, available at: http://www.copyrighthistory.org/cam/tools/request/showRecord.php?id=record_d_1840
 Anglo-French Copyright Treaty, London (1851), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, available at: http://www.copyrighthistory.org/cam/tools/request/showRecord.php?id=record_uk_1851.
 Supra footnote 9.
 William Glyde Wilkins, When Charles Dickens fell out with America, BBC Magazine, 14 February 2012. Available at: http://www.bbc.com/news/magazine-17017791.
 Le Droit D’Auteur, 15 November 1893, 131. Available at: http://www.wipo.int/edocs/pubdocs/fr/copyright/120/wipo_pub_120_1893_11.pdf.
 CODE PÉNAL DE 1810 Édition originale en version intégrale, publiée sous le titre: CODE DES DÉLITS ET DES PEINES. First Chapter was decreed on 17 February 1810, and promulgated on 27 February 1810. Available at: https://ledroitcriminel.fr/la_legislation_criminelle/anciens_textes/code_penal_1810/code_penal_1810_3.htm.
 4 H.L.C. 815, 24 LJ. Ex. 81, 3 C.L.R. 625, 1 Jur. 615 (1854).
 13 H.L. 100, 18 L.T. 874, 37 LJ. Ch. 454, 16 W.R. 1081 (1868).
  1 K.B. 393;  2 K.B. 474, 95 L.J.K.B. 148; 42 T.L.R. 666; 70 S.J. 756.
 Victor Foucher, Le Congrès de la propriété littéraire et artistique tenu à Bruxelles en 1858, Lèvy, 31 December 1858.
 Congrès littéraire international de Paris 1878 : présidence de Victor Hugo : comptes rendus in extenso et documents / Société des gens de lettres de France – 1879.
 Five years after its founding the words “et Artistique” were added.
 The Berne Convention and its sister treaty of 1883, the Paris Convention for the Protection of Industrial Property (date of the text 28 September 1979; entry into force 3 June 1984) available at: http://www.wipo.int/wipolex/en/details.jsp?id=12633, are both administered by the World Intellectual Property Organization (WIPO).
 Article 3 Berne Convention 1971 [Criteria of Eligibility for Protection: 1. Nationality of author; place of publication of work; 2. Residence of author; 3. “Published” works; 4. “Simultaneously published” works]
(1) The protection of this Convention shall apply to: (a) authors who are nationals of one of the countries of the Union, for their works, whether published or not; (b) authors who are not nationals of one of the countries of the Union, for their works first published in one of those countries, or simultaneously in a country outside the Union and in a country of the Union.
(2) Authors who are not nationals of one of the countries of the Union but who have their habitual residence in one of them shall, for the purposes of this Convention, be assimilated to nationals of that country.
(3) The expression “published works” means works published with the consent of their authors, whatever may be the means of manufacture of the copies, provided that the availability of such copies has been such as to satisfy the reasonable requirements of the public, having regard to the nature of the work. The performance of a dramatic, dramatico-musical, cinematographic or musical work, the public recitation of a literary work, the communication by wire or the broadcasting of literary or artistic works, the exhibition of a work of art and the construction of a work of architecture shall not constitute publication.
(4) A work shall be considered as having been published simultaneously in several countries if it has been published in two or more countries within thirty days of its first publication.
 Article 7(8) Berne Convention 1971: In any case, the term shall be governed by the legislation of the country where protection is claimed; however, unless the legislation of that country otherwise provides, the term shall not exceed the term fixed in the country of origin of the work.
 Silke von Lewinski, Intellectual Property, Nationality, and Non-Discrimination, Proceeding from WIPO, ‘98: Panel discussion on intellectual property and human rights. Geneva: World Intellectual Property Organization, 12 dd. Available at: http://www.wipo.int/edocs/mdocs/tk/en/wipo_unhchr_ip_pnl_98/wipo_unhchr_ip_pnl_98_6.pdf.
 GATT, Geneva 30 October 1947. Available at: https://www.wto.org/english/docs_e/legal_e/gatt47_01_e.htm.
 Marrakesh Agreement Establishing the World Trade Organization, 15 April 1994. Available at: https://www.wto.org/english/docs_e/legal_e/04-wto_e.htm.
 Article 33 Berne Convention. The same applies for the Paris Convention: Article 28 Paris Convention.
 Article 33(2) Berne Convention.
 Article 3(1) TRIPS: Each Member shall accord to the nationals of other Members treatment no less favourable than that it accords to its own nationals with regard to the protection of intellectual property, subject to the exceptions already provided in, respectively, the Paris Convention (1967), the Berne Convention (1971), the Rome Convention or the Treaty on Intellectual Property in Respect of Integrated Circuits. In respect of performers, producers of phonograms and broadcasting organizations, this obligation only applies in respect of the rights provided under this Agreement. Any Member availing itself of the possibilities provided in Article 6 of the Berne Convention (1971) or paragraph 1(b) of Article 16 of the Rome Convention shall make a notification as foreseen in those provisions to the Council for TRIPS.
 Article 2(2) TRIPS: Nothing in Parts I to IV of this Agreement shall derogate from existing obligations that Members may have to each other under the Paris Convention, the Berne Convention, the Rome Convention and the Treaty on Intellectual Property in Respect of Integrated Circuits.
 Article 9(1) TRIPS: Members shall comply with Articles 1 through 21 of the Berne Convention (1971) and the Appendix thereto. However, Members shall not have rights or obligations under this Agreement in respect of the rights conferred under Article 6bis of that Convention or of the rights derived therefrom.
 The difference between CPTPP and TPP is that CPTPP has suspended some provisions of the TPP. CPTPP vs TPP, New Zealand Foreign Affairs & Trade. Available at: https://www.mfat.govt.nz/en/trade/free-trade-agreements/-agreements-concluded-but-not-in-force/cptpp/tpp-and-cptpp-the-differences-explained/.
 Article 18.8(1) TPP: In respect of all categories of intellectual property covered in this Chapter, each Party shall accord to nationals of another Party treatment no less favourable than it accords to its own nationals with regard to the protection of intellectual property rights. Available at: https://www.mfat.govt.nz/assets/Trans-Pacific-Partnership/Text/18.-Intellectual-Property-Chapter.pdf.
 Article 18.8(4) Paragraph 1 does not apply to procedures provided in multilateral agreements concluded under the auspices of WIPO relating to the acquisition or maintenance of intellectual property rights.
 Article 1(5)(a) RCEP Chapter on Intellectual Property (Working Draft): Each Party shall accord to the nationals of other Parties treatment no less favourable than that it accords to its own nationals with regard to the protection of intellectual property, subject to the exceptions provided in the TRIPS Agreement and in the multilateral agreements concluded under the auspices of WIPO.
 P.B. Hugenholtz, Het einde van de Auteurswet nadert. Veertig jaar harmonisatie van het auteursrecht in Europa (1977-2017), AMI 2017 4, 177-181. Available at: https://www.ivir.nl/publicaties/download/AMI_2017_4.pdf.