This blog is part of our new blog series, the Secret History of Copyright. The series will unlock some of the mysteries of the copyright world – including little-known laws, influencers, cases and much more!
The folks at the Copyright Alliance asked me to share a personal moment of copyright history. While I have been fortunate enough to have been closely involved in many aspects of copyright development over the past thirty years, this particular chapter has always resonated for me. I hope you enjoy it.
On February 9, 1996, USTR initiated action against Japan in the first-ever dispute under the TRIPS Agreement — an agreement which had come into effect just six weeks earlier.
At issue was Japan’s compliance with its obligations under a rather obscure, but important, article of the recently negotiated agreement — an article that provided that “the provisions of Article 18 of the Berne Convention (1971) shall also apply, mutatis mutandis, to the rights of performers and producers of phonograms in phonograms.”
Since not everyone reading this will necessarily understand the significance of those 25 words, two of which are in Latin, let me take a step back and explain the context before getting to the role of the Doors’ Ray Manzarek in copyright history. Please bear with me for a few paragraphs.
There are actually many pieces of the puzzle, perhaps starting with the Congressional adoption of the Omnibus Trade and Competitiveness Act of 1988. This legislation established, for the first time, an unbreakable and firm connection between trade policy and intellectual property protection. While Congress had acted in 1984 to require adequate and effective intellectual property protection as a condition of countries enjoying trade preferences under the General System of Preferences (GSP) program, it wasn’t until the 1988 Act that this relationship was firmly established. In the 1988 Act, Congress directed the Administration to engage in two parallel tracks to advance the protection of intellectual property — it established the so-called “Special 301” provisions requiring the President to identify priority countries that denied adequate and effective intellectual property protection and to take remedial action (sanctions) where such practices were not adequately resolved; and it provided negotiating instructions for multilateral discussions concerning intellectual property in what was then known as the GATT (and now the WTO).
This reflected a growing Congressional awareness of the outsized impact of intellectual property on US economic competitiveness, and the consequent need to ensure adequate protection at home and abroad. It began a decade of tremendous activity in the US and globally that remade global rules related to intellectual property. Just months after passage of the 1988 Trade Act, Congress also enacted the Berne Implementation Act, bringing the United States into the principal international treaty governing copyright a mere 100 years after it was first negotiated. We may have been slow to the party, but over the course of the next decade, we quickly made up for lost time.
With the tools at its disposal created by the 1988 Trade Act, the Office of the United States Trade Representative (USTR) moved aggressively on the parallel tracks set out by Congress, engaging with global trade negotiators to produce a multilateral agreement on intellectual property in the GATT/WTO, and using Special 301 to leverage access to the US market to secure adequate and effective intellectual property protection where it was most lacking. Multilateral negotiations produced the TRIPS Agreement in 1994, implemented by the US Congress in the Uruguay Round Agreements Act (URAA) later that same year.
In the URAA, Congress addressed an issue that it had failed to address when the US joined the Berne Convention — the restoration of protection of pre-existing materials as required by Article 18 of the Berne Convention (made enforceable in the GATT/WTO via the TRIPS Agreement). Article 18 of the Berne Convention provides that:
(1) This Convention shall apply to all works which, at the moment of its coming into force, have not yet fallen into the public domain in the country of origin through the expiry of the term of protection.
(2) If, however, through the expiry of the term of protection which was previously granted, a work has fallen into the public domain of the country where protection is claimed, that work shall not be protected anew.
As such, the US was required to ensure the protection of works that were still protected in their country of origin and which had not already been protected in the US but fallen into the public domain through expiration of term. This was accomplished via amendments to Section 104 of Title 17, as described in this Copyright Office Circular. The constitutionality of copyright restoration under the URAA was challenged by Larry Lessig, Creative Commons, Public Knowledge, Google, the American Library Association & others in the case of Golan v. Holder. The Supreme Court rejected the argument that Congress lacked authority to establish protection for works formerly in the public domain, and held that Petitioner’s (and various amici’s) reading of Article 1, Section 8, Clause 8 was too constrained, in line with their earlier holding in Eldred v. Ashcroft, and that Congress was well within its authority to extend such protection as contemplated by the TRIPS Agreement.
It is also interesting to note that Congress, in 1994, created federal copyright protection for foreign pre-1972 sound recordings — something contemplated for US sound recordings in the Orrin G Hatch Bob Goodlatte Music Modernization Act which just was just signed into law. Unlike the Orrin G Hatch Bob Goodlatte Music Modernization Act, however, the protection of pre-72 foreign sound recordings in the URAA did not affect or preempt, in any respect, existing protection under state laws.
Which brings us back to February 1996 and the first case after conclusion of the TRIPS Agreement. Japanese industrial policy in the 1980’s and 1990’s focused greatly on electronics in which it was highly competitive, and it adopted policies that expanded the availability of free or inexpensive content to drive sales of electronics, including the failure to protect sound recordings released prior to Japan’s adherence to the Geneva Phonograms Convention in 1978. This was consistent with their international obligations at the time since the Geneva Phonograms Convention didn’t require protection of catalog materials as contemplated by Article 18 of the Berne Convention. But TRIPS changed this.
Japan wasn’t so sure, and despite pre-litigation outreach by the US government (as well as yours truly), Japan refused to expand its protection to back catalog materials as required by TRIPS, thus triggering the WTO action. I worked closely with USTR in the preparation of this case, and frequently fielded calls from interested members of the music community — including the legendary Ray Manzarek of the Doors. As we approached the date when the case was going to be initiated, I asked Ray if he would be interested in appearing at the press conference along with USTR announcing the case. He jumped at the opportunity as he felt very strongly that Japanese policy was, as he said, “shameful.” Since literally millions of dollars per year were resting on the outcome of this case, I asked Ray to come in two days before the press conference so that we could prepare. He gladly accepted.
It was amazing. 48 hours with Ray Manzarek. We talked about everything, but he was super-focused on the case, and I went over in great detail all of the legal underpinnings and complexities of the case. We worked on his statement, he practiced it countless times. We were set. Then came the press conference. After USTR Mickey Kantor and RIAA CEO Jason Berman made their statements, on came Ray. I of course knew what he was going to say, but listened anyway. As you may have guessed, from word one, nothing that he said was what we had practiced over the preceding two days! I was terrified. He began his statement with some reference to loving Japanese designers, and loving the country…and I was petrified. Where was this going? Fortunately, this was Ray Manzarek. Genius Manzarek. He decided to riff rather than go with a script. I get it, and he was brilliant. Talked about respect. Everything came back to respect — a concept that is extremely important in Japanese culture. Ray was being Ray, and I got to treasure my 48 hours of trying to make him into something that he wasn’t. The world was better, and more interesting, as a result of my failure.
Largely prompted by Ray’s comments, as well as direct outreach from the estate of Elvis Presley to Prime Minister of Japan Ryutaro Hashimoto, Japan rather quickly relented, and chose the moral path outlined by the late Ray Manzarek, extending protection to US and other foreign sound recordings released within 50 years. The decade of copyright reform continued — the so-called WIPO “Internet Treaties” were adopted in December of 1996, and implemented in the US via the DMCA in 1998. And the US continued to drive reforms through the Special 301 process and related trade tools. But that day in February of 1996 will always have a special place in my heart — both on a personal level, and for its reaffirmation of the moral basis for copyright.
To the memory of Ray Manzarek, Rider of the Storm and champion for securing not only copyright protection, but respect.
Note to readers who may not know Ray Manzarek and the Doors. Ray was rock-royalty. A game-changing artist with incredible talent and imagination. And if I would have done my homework, I should have realized that nothing was going to go as planned. See the following from the 1969 Doors appearance on the Ed Sullivan show:
“The band famously defied Ed Sullivan’s request that they not sing the lyric “higher” when they performed “Light My Fire” on his show in 1969. A show producer approached them in the dressing room shortly before they were to perform, Manzarek recalled in an interview with CNN in 2002.
Manzarek remembers the band publicly agreeing like choirboys.
“ ‘Yes, sir,’ we told him,” he recalls. “’Whatever you say, sir. We’ll change.’ (The producer) looked at Jim and said, ‘You’re the poet. Think of something else — ‘wire,’ ‘flyer.’ “
Then the Doors went out and did the song exactly as they always did.”
Neil Turkewitz is a 30-year veteran of the Recording Industry of America (RIAA), serving most recently as its international executive vice president. He is also the CEO of the Turkewitz Consulting Group.
Photo Credit: ipopba/iStock/thinkstock