Each of the treaties required 30 nations to accede to it before it would enter into force.
On Dec. 5, 2001, Gabon became the 30th nation to accede to the WIPO Copyright Treaty, and on
Feb. 20, 2002, Honduras became the 30th nation to accede to the WIPO Performances and
Phonograms Treaty. Accordingly, each of those treaties entered into force ninety days thereafter,
on March 6, 2002 and May 20, 2002, respectively.^47 The treaties are not self executing under
United States law, and implementing legislation will have to be passed by Congress.
The two adopted treaties will effect important substantive changes in international
copyright law that have potentially far reaching implications for the Internet, and the relevant
provisions of these treaties will be discussed throughout this paper. The legislative history to the
WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty took the form of
several “Agreed Statements.” Under the Vienna Convention, an Agreed Statement is evidence
of the scope and meaning of the treaty language.^48 Relevant portions of the Agreed Statements
will also be discussed in this paper.
Each of the signatories to the WIPO treaties was required to adopt implementing
legislation to conform to the requirements of the treaties. The scope of legislation required in
any particular country depends upon the substantive extent of that country’s copyright law
existing at the time of the treaty, as well the country’s own views concerning whether its existing
laws already conform to the requirements of the treaties. As discussed in detail below, WIPO
implementation legislation in the United States took a largely minimalist view of the changes to
United States copyright law required to conform to the WIPO treaties. It is curious that all the
implementing legislation introduced in Congress implicitly took the position that U.S. law
already contains most of the rights required under the WIPO treaties, in view of the fact that, as
analyzed below, much of the language describing mandatory copyright rights in the WIPO
treaties appears to go beyond the correlative rights in current United States law or to set up new
rights entirely. The possibility that other countries would adopt legislation implementing the
WIPO treaty rights in their seemingly broader form raises the prospect of varying scopes of
rights in different countries, a situation that the WIPO treaties were intended to avoid in the first
place.^49
In contrast to the United States implementing legislation, the European Commission’s
“European Copyright Directive on the Harmonization of Certain Aspects of Copyright and
Related Rights in the Information Society”^50 to update and harmonize member state copyright
laws (which will be referred to herein as the “European Copyright Directive”) seems to take a
more expansive view, although individual member states are free to interpret the extent to which
(^47) “WIPO Copyright Treaty Enters Into Force As Gabon Becomes 30th Nation to Accede,” BNA’s Electronic
Commerce & Law Report (Dec. 12, 2001) at 1224; “U.N. Announces Music Piracy Pact” (Feb. 21, 2002),
available as of Feb. 21, 2002 at http://news.com.com/2100-1023-842169.html.
(^48) Vienna Convention on the Law of Treaties, May 23, 1969, art. 31(2), 1155 U.N.T.S. 331.
(^49) WIPO Copyright Treaty, Preamble, at 4; WIPO Performances and Phonograms Treaty, Preamble, at 22.
(^50) The text of the European Copyright Directive may be found at
http://europa.eu.int/servlet/portail/RenderServlet?search=DocNumber&lg=en&nb_docs=25&domain=Legislati
on&coll=&in_force=NO&an_doc=2001&nu_doc=29&type_doc=Directive (available as of January 1, 2002).