A number of the objections to the settlement hit the Berne Convention issues fairly hard. They claim that the settlement institutes new formalities or discriminates against foreign copyright owners, both things expressly forbidden by Berne. Bernard Lang’s paper also expresses substantial skepticism about the settlement’s compliance with Berne.

Well, now there’s a reply, and quite a serious one. Sam Ricketson, an Australian lawyer and professor and international copyright expert, has written a Berne analysis, and his bottom line is much more favorable to the settlement:

In light of the above, it is concluded that there is nothing in the GBS that falls foul of any obligation borne by the USA in relation to the Berne Convention.

My understanding is that he was asked to supply his sixteen-page paper as an outside expert opinion by Google, and that it reflects his most considered opinion and legal judgment. Though the paper is short, it’s dense, and he responds in detail to the arguments made against the settlement.

One of his most interesting arguments is to compare the Google settlement to the national collecting societies for various media in many non-U.S. countries, in particular the Scandinavian ones. In many cases, the settlement comes off better in the comparison. If they impose similar requirements (i.e. claiming one’s works), then condemning the settlement would require condemning the collecting societies, too.

Ricketson also gives the most nuanced reading I’ve yet seen of the degree to which United States courts must give heed to Berne and vice versa. I found the following passages striking:

In most legal systems, the judiciary is independent of the legislative and executive arms of government, and the country concerned cannot be responsible for the decisions that are made by its judiciary in the exercise of their decision-making functions. This is quite unlike the case of legislative and/or administrative action that lies fully within the realm of that country’s legislature or executive government.

If the criticism is directed at Rule 23 as a piece of subordinate legislation or administrative rule that is ultimately within the control of the state to determine (which may or may not be an accurate statement as a matter of US constitutional law), it is nonetheless a rule of general application that is not directed to any specific form of dispute, and certainly not to copyright disputes. In this regard, a sharp contrast is to be drawn with respect to the specific legislative rules adopted in Scandinavian countries in relation to the extended collective licensing schemes referred to above.

I lack the background to fully evaluate Ricketson’s analysis. Much of it seems persuasive, but I thought the same thing about some of the Berne objections, too. This is an area in which I’m out of my depth. In any event, this paper will surely be interesting to settlement-watchers, and thus I pass it along for your consideration.

I think you meant to give us a link to the paper? I guess there will be one at the Public Index.

Found it to be notably weak, surprisingly. Isn’t one of the sentences you quote—“the country concerned cannot be responsible for the decisions that are made by its judiciary in the exercise of their decision-making functions”—demonstrably false?

Oops; I forgot to hit “post” on the revision including the link. Fixed now.

My best understanding of the quoted sentence is that it’s about judicial independence. A country needs to draft statutes that adhere to treaty obligations, but for rule-of-law reasons cannot interfere with individual cases in its judicial system by specifically instructing judges what to do or by disciplining them if they err. Thus, it’s not “responsible” for individual judicial decisions. Again, I don’t know enough international law to know whether this is a standard treaty doctrine, but it struck me as the kind of thing that might be one.

Hmm, no. If this UN commission report of the principles of international law is to be believed, Ricketson is just wrong:

The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State.

It’s only a commission report, not a treaty itself, but it backs up its recommended codification with a lot of authority, citing both international arbitration decisions and the International Court of Justice.