When discussing national copyright legislation with lawyers, most discussions end relatively quickly with reference to the inherent necessities of international treaties. Legalize non-commercial file-sharing? In conflict with the Berne three-step test, which is included in the TRIPs Agreement, the WIPO Copyright Treaty, the EU Copyright Directive and the WIPO Performances and Phonograms Treaty (see also the Declaration on the Three-Step Test by the Max Planck Institute for Intellectual Property in Munich). Introduce a so-called cultural flat-rate (see also “Extending Private Copying Levies“)? Not in line with the Three-Step Test, either. Shorten copyright terms below the 50 year threshold? Impossible, at least for WTO member states, which have to abide to the TRIPs Agreement.

And there is, of course, some truth in the prevailing view that most aspects of copyright legislation are already mapped out by international law, leaving national legislatures with only little room for maneuver. Nevertheless, two recent and very antagonistic examples of national copyright reform efforts show that this national leeway is not so small after all.

In sharp contrast to European tendencies to increase scope and length of copyright protection, the Brazilian copyright reform proposal put forward by the governing Worker’s Party includes wide exceptions for non-profit educational uses, a reduction of the copyright term from 70 to 50 years, and it even flirts with the introduction of a cultural flat-rate (see vgrass; an English version of the proposal: PDF). One of the most striking clauses in the bill deals with circumvention of copy protection measures (so-called “DRM“), as is reported by Michael Geist:

Not only does the proposal permit circumvention for fair dealing and public domain purposes, but it establishes equivalent penalties for hindering or preventing the users from exercising their fair dealing rights.  In other words, the Brazilian proposals recognizes what the Supreme Court of Canada stated several years ago – over-protection is just as harmful as under-protection.

I like this one, as it very nicely illustrates how national legislative leeway emerges out of regulatory voids: of course, Brazil has to abide to Article 11 of the WIPO Copyright Treaty, which requires “legal protection and effective legal remedies against the circumvention of effective technological measures”; but the treaty does neither forbid exceptions nor penalizing producers of protection technologies, which foreclose those exceptions.

The second example for national leeway in the opposite direction – strengthening copyright and hindering alternatives such as open content licensing – is a recently leaked reform proposal from the Czech Republic. The European Digital Rights Initiatve (EDRI) describes the draft (Czech Original), which was developed by the Czech Ministry of Culture, collecting societies and The Association of Copying Services Entrepreneurs, as follows:

The Copyright Act draft contains a controversial section on the temporal effect of copyleft licenses (e.g. Creative Commons, also called public licenses in legal terminology). It imposes the obligation to notify collecting societies on authors each time they decide to publish their works outside the strict copyright framework. The legislation thus disrupts the idea of quick and simple publishing enabled by public licenses and forces bureaucratic elements into the system. Collecting societies would also have complete overview of copyleft works.

Moreover, according to EDRI, the draft grants collecting societies the right to control orphan works, strengthens their monopoly and reintroduces the obligation to report all live performances to the collecting society OSAm including a detailed program. Of course, this proposal has written “lobbying” all over it. At the same time, however, it also illustrates why in this blog we speak of “transnational” rather than “global” or “international” governance: the growing importance of border-crossing governance processes does not render obsolete those very borders that are crossed.