WIPO and the American Constitution: Thoughts on a New Treaty Relating to Actors and Musicians

Hannibal Travis · 16 Vand. J. Ent. & Tech. 45

Abstract

The World Intellectual Property Organization (WIPO) is seeking to reform U.S. copyright law. The WIPO Treaty on Audiovisual Performances (AV Treaty) would restrict the communication of actors’ and musicians’ performances without authorization. The treaty would probably make it illegal to display or show clips of performances, or make a movie or YouTube video by transforming or adapting other actors’ or musicians’ performances, particularly when the original credits and copyright information are dropped.

This Article analyzes key provisions of the AV Treaty to ascertain whether they change US law, or merely globalize existing US doctrines. This Article describes the threat posed to the First Amendment by the AV Treaty’s introduction of performers’ moral rights, and by the outlawing of acts that make performances “available” to others even without a distribution of clips of them. This Article analyzes these First Amendment threats using the rubric provided by Eldred v. Ashcroft. It also outlines the due process concerns that arise from the AV Treaty’s vague language and arbitrary distinctions, and the Eighth Amendment problems arising from statutory damages in civil actions regarding the misuse of performances. Moreover, the Trans-Pacific Partnership Agreement may exacerbate the harms to the Internet inflicted by the AV Treaty, by requiring criminal charges for the noncommercial use of a performance.