International and Domestic Perspectives on Aereo

On Monday, the International Federation of the Phonographic Industry (IFPI), together with a group of fourteen international organizations that represent the creative community and eight international copyright scholars filed an amicus brief in support of broadcasters in ABC v. Aereo. The U.S. Government also filed an amicus in support of petitioners.

The International Law Perspective

IFPI focuses on how the Supreme Court’s interpretation of U.S. copyright law should take into account U.S. international obligations acquired through the WIPO treaties (1996 Copyright Treaty; 1996 Performances and Phonograms Treaty) and free trade agreements. IFPI’s main goal is to show “how the technology-specific outcome in Cablevision and Aereo is fundamentally at odds with the international treaty commitments entered into by the United States and with its domestic legislative history, each of which demonstrates the understanding that existing public performance rights comply with those obligations.”

Following the Charming Betsy rule, when the U.S. ratifies and implements an international treaty, the courts of the country must interpret national laws in a way that is compatible with the text and spirit of the international treaty. Given the long-standing efforts to harmonize copyright law at the international level, Congress has recognized the particular importance of this principle of statutory interpretation in the case of the U.S. copyright law.

IFPI analyzes the history of U.S. engagement with international copyright treaties, from Berne (1988) & TRIPS (1994) to WCT & WPPT (1996) as well as free trade agreements with Mexico and Canada (NAFTA) (1994) and, Australia (2004). IFPI argues that “[w]hile amici believe that the language of the Transmit Clause unambiguously leads to the conclusion that Aereo’s transmissions are public performances, the treaty obligations entered into by the United States on multiple occasions would require the same conclusion even if the statutory text was ambiguous.” Specifically, the U.S. committed to a technology neutral interpretation of the right of public performance through Arts. 11, 11bis, 11ter, 14, and 14bis of the Berne Convention; and Art. 8 of the WIPO Copyright Treaty that provides “authors of literary and artistic works shall enjoy the exclusive right of authorizing any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access these works from a place and at a time individually chosen by them.”