Trade, Investment and Intellectual Property
Edited by Anselm Kamperman Sanders
Chapter 9: National treatment in copyright and related rights: How much work does it do?
The obligation of national treatment makes an appearance in all five of the major active multilateral treaties concerning copyright and related rights, including the Berne Convention, the Rome Convention, the TRIPS Agreement, the WIPO Copyright Treaty (WCT), and the WIPO Performances and Phonograms Treaty (WPPT), a group I will collectively call the “five CRR treaties.” The national treatment principle has been praised in part for its administrative convenience: it “allows [a treaty] member and its courts to apply their own law – the law they are familiar with.” Yet it is principally lauded for its substantive bite, as a rule requiring that treaty parties extend protection to non-nationals on the same terms as they do to their own nationals. It is that bite that commentators have in mind when they suggest that the “fundamental principle of the [Berne] Convention was national treatment,”or that “[t]he national treatment and MFN principles are cornerstones of the WTO legal system, including TRIPS.” Behind that sweeping rhetoric, however, there are reasons to question whether the national treatment obligations imposed by the five CRR treaties remain of paramount importance in practice. Together, those treaties now contain far more specific substantive minimum guarantees than the Berne Convention did in its first incarnation in 1886.
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