The Berne Convention as a Canon of Construction: Moral Rights after Dastar

Abstract

This article advocates greater use of public international law instruments to assist with the interpretation of domestic intellectual property statues. Basing its analysis on the 2003 decision of the United States Supreme Court, Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003), in which the Court declined to interpret section 43(a) of the Lanham Act (which inter alia enacts civil liability for misleading representations as to the "origin" of goods) as encompassing misleading representations as to the "intellectual origins" of informational products, the article argues that the Supreme Court's construction of section 43(a) of the Lanham Act was: (1) inconsistent with the requirement in the Berne Convention that member states protect authors' moral rights; and (2) also inconsistent with the requirement, articulated by Justice Marshall in The Charming Betsy, 6 U.S. (2 Cranch) 64 (1804), that congressional law should be interpreted consistently with public international law obligations. The Charming Betsy rule implies that, in construing ambiguous statutes, achieving consistency with public international law obligations must be based on an available construction of the statute. Public international law instruments are of less assistance when legislatures have made it "crystal clear" that an inconsistent meaning was intended. Accordingly, the article presents a general critique of the reasoning in Dastar, and argues that a more "Berne-consistent" approach to section 43(a) of the Lanham Act was available to the Court. The article then explores ways that cognate Commonwealth jurisdictions have invoked the Berne Convention to assist with the construction of ambiguous domestic statutes. Finally, it advocates a greater role in U.S. statutory construction for the presumption that Congress legislates consistently with the federal government's public international law obligations, and concludes by exploring the implications of this approach to statutory construction for U.S. copyright law.

Keywords: Copyright, Statutory Interpretation, Statutes, International Law