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Vanderbilt Law Review

Neil W. Netanel

First Page

217

Abstract

In a seeming blink of an eye, international bodies applying international law have effectively become the arbiters of domestic copyright law. World Trade Organization ("WTO") dispute settlement panels may now determine whether a nation's copyright law comports with the newly adopted Agreement on Trade-Related Aspects of Intellectual Property ("TRIPS"),' and may authorize trade sanctions upon a finding of non-compliance. Of like import, the United Nations' World Intellectual Property Organization ("WIPO") increasingly serves as a favored venue for copyright industry and user groups to further their legislative agendas. Recent WIPO treaties have accordingly set the tone for proposed domestic legislation designed to bring copyright law into the digital age.

Given the ongoing integration of world communications and markets for cultural expression, the continuing globalization of copyright law is inevitable. For that reason, the question of the future direction and shape of international copyright law has become a matter of considerable and growing controversy. Most pointedly, to the profound consternation of numerous commentators, recent years have seen a dramatic move to reconceptualize copyright in terms of international trade. TRIPS epitomizes that move. It aims to ratchet up worldwide copyright protection and enforcement in order to remove barriers to copyright industry exports. United States and European Union officials have aggressively promoted the view of cultural expression as a commodity of trade in other contexts as well. At the behest of their constituent producers and purveyors of sound recordings, films, television programs, and software, they have insisted that countries be required to minimize limitations on copyright holder rights, arguably riding roughshod over venerable copyright values and the public interest in the process.

This Article presents an alternative framework for copyright globalization. It builds upon the argument, recently advanced by myself and others, that copyright law serves fundamentally to underwrite a democratic culture: By according creators of original expression a set of exclusive rights to market their literary and artistic works, copyright fosters the dissemination of knowledge, supports a pluralist, nonstate communications media, and highlights the value of individual contributions to public discourse.' In this view, copyright's constitutive, democratic purpose is both a primary rationale for according authors proprietary rights in original expression and the proper standard for delimiting those rights. Copyright holder rights should be sufficiently robust to support copyright's democracy-enhancing functions, but not so broad and unbending as to chill expressive diversity and hinder the exchange of information and ideas.

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