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National treatment

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Definition Edit

National treatment is

[t]he principle of giving others the same treatment as one's own nationals.[1]

Overview Edit

The principle of "national treatment" is the cornerstone of the major international intellectual property treaties — Berne, Paris and the TRIPS Agreement. It also has been the keystone of international trade treaties, such as the General Agreement on Tariffs and Trade and the WTO. It is of enormous significance to our copyright industries.

As a general matter, the principle of national treatment means that under a nation’s laws, a foreigner enjoys no lesser rights and benefits than a citizen of that nation receives, subject to the specific terms of the relevant international conventions. In copyright terms, it means, for example, that a German work for which copyright enforcement is sought in the United States would be treated under U.S. law exactly as if it were a U.S. work.

Berne Convention Edit

Article 5(1) and 5(2) of the Berne Convention establish the principle of national treatment for works protected by copyright. Under Article 5(1), there is an obligation to grant to nationals of countries of the Berne Union national treatment in respect of the rights specifically covered by the Convention. This point is not disputed. However, with respect to any new rights which may be hereafter granted, some have taken the position that the national treatment obligation applies only to the minimum rights in the Convention.

Rome Convention Edit

The fundamental problem with the Rome Convention is that, while it generally imposes a national treatment obligation, it permits a number of reservations and exceptions that allow a Member to avoid that obligation for important rights otherwise provided for in the Convention. Article 3.1 of the TRIPs Agreement provides that "[i]n respect of performers, producers of phonograms and broadcasting organizations, this obligation [national treatment] only applies in respect of the rights provided under this Agreement."[2] It also provides that a Member may avail itself of the "possibilities provided in . . . paragraph 1(b) of Article 16 of the Rome Convention . . ." relating to reciprocity for the broadcasting right in respect of phonograms.[3]

Additionally, the TRIPs Agreement includes a national treatment obligation.[4] In respect of copyright the TRIPs national treatment provision incorporates the standards of the Berne Convention, but in respect of neighboring rights, it allows members to impose the exceptions to national treatment permitted by the Rome Convention.[5]

NAFTA Edit

NAFTA includes a very broad national treatment provision that does not include the possibility of making the broad exceptions provided for under the TRIPs Agreement.[6]

ReferencesEdit

  1. DOHA WTO Ministerial 2001: Glossary of Terms.
  2. See Trade-Related Aspects of Intellectual Property, Final Act Embodying the Results of the Uruguay Round of the Multilateral Trade Negotiations, Office of the U.S. Trade Representative (Dec. 15, 1993).
  3. Id.
  4. Article 3 of TRIPs (National Treatment).
  5. Article 4 of TRIPs (Most Favored Nation Treatment).
  6. See NAFTA, H.R. Doc. No. 159, 103d Cong., 1st Sess. (1993); 32 I.L.M. 289-456, 605-799 (1993). NAFTA is binding among the United States, Mexico and Canada.

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