Nation, Duration, Violation, Harmonization: An International Copyright Proposal for the United States

Throughout most of its history, the US has adopted copyright laws independent of the outside world. That changed in 1989 when Congress joined the Berne Convention

The End of Copyright

One December 8, 1994, Congress ended the experiment that it commenced on May 31, 1790, in the first Judiciary Act:\u27 legislating an autonomous body of United States copyright law governed by the Copyright Clause of the Constitution. We witnessed, on December 8, a major change of constitutional proportions; even more significantly, we experienced the first tremors of certain tectonic shifts in United States sovereignty; and, perhaps most significantly, we undertook a sea change in defining the end that copyright serves, the identity of the master in the copyright sphere. I refer to enactment of the Uruguay Round Agreements Act (the Act ). That enactment, one must hasten to add, represents a major overhaul of federal law in many spheres, not simply in copy- right. I cannot hope to cover the alpha and omega of this massive law. But its copyright significance more than amply warrants monopolization of this Essay\u27s attention. Copyright has now entered the world of international trade. The popular press mirrors this phenomenon-never before has copyright monopolized the headlines in any way comparable to the recent spate of stories about plans for the United States to impose $1.08 billion in punitive tariffs on goods from the People\u27s Republic of China because of copyright violations Twenty-nine factories operating in southern and central China, some under government auspices, produce some 70 million pirated laser discs and audio compact discs annually. The United States threatened to respond by imposing tariffs on China. Furthermore, the United States threatened to bar China, because of its copyright piracy, from entry as a charter member of the World Trade Organization, constituted on January 1, 1995. It is appropriate that the roots of this Essay, detailing the end of the expansive perspective of traditional copyright protection, germinated at a Hollywood entertainment seminar entitled Where Worlds Collide; even more apropos might have been Where Worlds Implode. Physicists posit a universe expanding ever since the Big Bang; but one view holds that at some future point the mutual at- traction of every particle in the universe will overcome that expansion. Time will then run backward and all matter will contract to- ward the Big Crunch. December 8, 1994, may be viewed in hindsight as that turning point in the legal universe. Under this view, time is now running backward, and all legal doctrines are collapsing into the gigantic crunch of trade law. The bold thesis of this Essay, positing the end of traditional copyright jurisprudence, obtains notwithstanding a paucity of legal provisions actually legislated as part of the Act. Congress enacted just four copyright provisions on December 8, 1994. To appreciate the import of these four provisions, the discussion below first summa- rizes them briefly. It then takes a step back to survey their larger framework, before examining them in more detail and inquiring as to their constitutional underpinnings. Only after such an analysis can we then draw conclusions

Volition in Violation of Copyright

Many recent copyright infringement cases have focused on the question of volition. As contentious as the matter has become in current copyright doctrine, the issue is relatively new. From the passage of the first Copyright Act in 1790 forward, U.S. copyright cases devoted no discussion to the issue. Two centuries later, however, the advent of the Internet raised this issue, among so many others. Nothing is totally new under the sun. As far back as enactment of the 1976 Act, concern was expressed lest telephone companies be ensnared in liability, to the extent that their facilities were used in the retransmission of cable signals. Congress adopted the “passive carrier” exemption, releasing from liability those “whose activities with respect to the secondary transmission consist solely of providing wires, cables, or other communications channels for the use of others.” That provision was necessary as telephone companies risked liability in its absence. Nobody at the time raised lack of “volition” as even a theoretical defense to that imputation. Decades later, with the advent of the Internet and online services, those same considerations multiplied along with the explosion of new ways to use “wires, cables, or other communications channels.” This Article began as the 32d Annual Horace S. Manges Lecture, delivered at Columbia Law School on April 1, 2019