The “International Copyright Protection System”: A Proposed Uniform Copyright Law System
As I was doing research for this commentary post on international copyright issues, I came across an interesting article by a student at the Pacific, McGeorge School of Law. The article, titled “Harmonization of International Copyright Protection in the Internet Age,” was written by Christian A. Camarce in 2007.[i] <#_edn1> It discusses a proposed system of copyright protection which was drafted by Professor J.A. Sterling of the Queen Mary Intellecutal Property Institute, an institute at the Queen Mary School of Law at the University of London.
Professor Sterling’s proposed International Copyright System (“ICPS”), with all of its proposed parts, can be found at http://www.qmipri.org/icps.html. The ICPS includes a Draft International Copyright Code (“Draft Code”), a Draft International Copyright Agreement (“Draft Agreement”), a Draft Protocol on Interpretation of the WIPO Treaties, a Draft Protocol on Space Copyright Law & Extraterritorial Exploitation of Protected Material, and a Draft Protocol on Limitation of Liability of Service Providers.
Mr. Camarce argues that the current international copyright conventions and agreements provide inconsistent protection for copyrightable material. He does not specifically refer to the principle of national treatment as such, but does discuss the fact that the current international copyright conventions primarily do determine the scope of protection based on the law of the country where protection is sought. As our book explains, this is the principle of national treatment. Mr. Camarce’s main contention throughout the article is that in the age of the internet, where many different countries can be involved in a single act of copyright infringement at one time, a more uniform system is needed to provide consistent and dependable results. An example of this concept of multiple countries involved at the same time would be a person located in one country browsing on a website of another country which is streaming copyrightable material from a third country. The example that Mr. Camarce uses is that “one state may broadcast copyright content owned by another state over the internet and not violate it’s own national law. The broadcast of the copyrighted material, however, may violate the copyright laws of the right holder’s state.”[ii] <#_edn2>
The ICPS proposes to establish an International Copyright Tribunal which would review copyright infringement issues between member countries and “issue injunctions, order the destruction or disposal of infringing material, order the payment of damages, and make any other order that the tribunal considers justifiable under the circumstances of the case.”[iii] <#_edn3> Once the Tribunal reaches a judgment, it would not actually have any enforcement power, but rather would rely on the local courts of the member countries to enforce its decisions. The ICPS requires member countries to enact legislation that would give that effect to the Tribunal’s decisions. This system is different than the national treatment system which relies on the courts of the country where protection is being sought to handle copyright issues. Our book points out that an advantage of this national treatment system is that local courts are not required to master a foreign copyright law, they need only know the law of their own jurisdiction and apply it to any case where copyright protection is being sought within their jurisdiction. The single uniform, common copyright law that the ICPS proposes would have a similar result. Each member country’s courts would only have to become familiar with one common international copyright law that would apply to all member countries. The stated goal of the Draft Code for the ICPS is to view the international community of member countries as one country with one copyright law. Additionally, local courts would only need to enforce the decisions, which they would be required by to do by their own national legislation, of the Tribunal, which would of course be well-versed in the uniform international copyright law.
Despite some of the possible advantages of this uniform copyright law system, the Draft Code seems to fall short of its goal of one uniform law for all of the member countries because it allows a member country to choose to bring its action under either the country’s own national law in its own court or under the Draft Code before the International Tribunal. This allowance of a country to bring the action before its own laws causes the same problems for which the Draft Code and the Tribunal proposes to be established in the first place. If the victim of copyright infringement prefers the local laws of the country where the enforcement is being sought, then they can choose to sue there under those laws, otherwise, if they believe that the laws of the Draft Code are better for their case, then they can bring the issue before the Tribunal. This allows for the same variance in decisions and results that occurs under the national treatment system. However, one could say though that the Draft Code would at the least provide a base level of guaranteed protection for victims of copyright infringement who seek protection in a member country. As our book explains, though, this already exists with regard to the Berne Convention and the Universal Copyright Convention. There are substantive minima in the language of the agreements, which “prescribe categories of works to be protected, minimum periods of protection, limitations on imposition of formalities, and forms of exploitation in which exclusive rights, or in some instances, at least equitable remuneration, must be assured.”[iv] <#_edn4>
A specific internet issue that Mr. Camarce discusses with regard to the ICPS and the proposed Draft Code is peer-to-peer (“P2P”) file sharing. The examples he discusses are the Napster, Kazaa, and Grokster cases. He refers to these cases, where different courts reached different conclusions regarding liability and points to this as an example where a uniform international copyright law would harmonize international law regarding P2P technology. He states that “a uniform copyright law would maintain constituency in applying theories of liability in P2P copyright infringement cases.”[v] <#_edn5>
Mr. Camarce concludes that the ICPS and its accompanying code, agreement, and protocols, would be an ideal and harmonious solution to the inconsistencies in international copyright law, particularly with regard to internet-related international copyright law issues.
It appears to me that the ICPS and its accompanying parts provide an over-simplified attempt to harmonizing international copyright law. It seems unlikely to me that many countries would be compelled to agree to participate in this overarching copyright law, through which victims of infringement in a particular country could choose to override the national copyright laws of that country by appealing to the Tribunal and the Draft Code. The international copyright law landscape today is complicated because there is not one simple solution for the problems of dealing with multiple countries with different sets of copyright laws. The already existing agreements, such as the Berne Convention and the Universal Copyright Convention, which may result in varying results internationally, at least provide consistency in each country itself based on the national treatment principle.

[i] <#_ednref1> Christian A. Camarce, Harmonization of International Copyright Protection in the Internet Age, Pac. McGeorge Global Bus & Dev. L.J. 435 (2007).
[ii] <#_ednref2> Id. at 437.
[iii] <#_ednref3> Id. at 442.
[iv] <#_ednref4> Robert A. Gorman & Jane C. Ginsburg, Copyright 1082 (2006).
[v] <#_ednref5> Camarce, supra note 1, at 460.