Floors and Ceilings in International Copyright Treaties (Berne/TRIPS/WCT minima and maxima)
This Comment addresses “floors” – minimum substantive international protections, and “ceilings” – maximum substantive international protections, set out in the Berne Convention and subsequent multilateral copyright accords. While much scholarship has addressed Berne minima, the “maxima” have generally received less attention. This Comment first describes the general structure of the Berne Convention, TRIPS and WCT regarding these contours, and then analyzes their application to the recent “press publishers’ right” promulgated in the 2019 EU Digital Single Market Directive.
Within the universe of multilateral copyright obligations, the Berne maxima (prohibition of protection for facts and news of the day), buttressed by the TRIPS and WCT exclusion of protection for ideas, methods and processes, should promote the free cross-border availability of facts and ideas, as well as of exercise of the Berne Convention mandatory exception for the making of “quotations” from publicly-disclosed works. Individual Berne countries of origin may protect excluded subject matter or preclude mandatory exceptions in their own works of authorship, but not in foreign Berne works. Nonetheless, member States might be able to elude Conventional maxima by resort to copyright-adjacent sui generis rights, such as the Digital Single Market Directive’s new press publisher’s right. This Comment considers the extent to which Conventional maxima may nonetheless have a preclusive effect on such maneuvers.