GBS: Gervais on TRIPS

Law professor Daniel Gervais has added his distinguished voice to the debate over the settlement’s compliance with international copyright law. His short paper, The Google Book Settlement and the TRIPS Agreement, forthcoming in the online Stanford Technology Law Review, is measured but skeptical:

Our tour d’horizon has perhaps raised more questions than it has provided answers. For example, while an opt-out does not amount to a per se violation of the Berne Convention, the conformity of the specific form of the opt-out clause in the Amended Settlement and its time-limited nature remain dubious. For any book that might be included in the Settlement without the right holder’s consent and not subject to an effective opt-out, a different set of rules likely applies, namely the compatibility of new forms of compulsory licensing with the three-step test.

While there are few if any convincing arguments to support a claim based on a violation of national treatment in the Settlement and its class action structure, credible doubts emerge when the spotlight is turned towards the TRIPS most-favored nation clause. While I do not purport to offer a definitive analysis, it would seem that a disadvantage is imposed on one group of foreign right holders based on their nationality when compared to nationals of other WTO members. Such disadvantage is imposed by a branch of the US government and does not appear to be covered by any of the applicable MFN exemptions.