Legal Transplants in International Copyright: Some Problems of Method

Abstract

This essay analyzes how laws may be transplanted, notably by copyright treaties. It starts by reviewing arguments for and against the feasibility and advisability of legal transplants. In particular, it explores how open-ended legal notions risk taking on diverse meanings, triggering some hard cases. Furthermore, such notions can prove difficult to translate from any one culture and language into the terms of others, especially as treaty-makers attempt to transplant laws. The Berne Convention, the matrix for treaties internationally harmonizing copyright laws, illustrates methods for resolving ensuing problems of transplants. Finally, such methods for transplanting law are refined, both to assure stable media commerce and to foster cultural pluralism. For example, treaty language can clarify some notions for cross-border transactions, while leaving others open-ended.

Keywords: legal transplants, philosophy of law, translation methodology, core and penumbral meanings, hard cases, Berne Convention, copyright treaties, harmonization, media commerce, cultural pluralism

JEL Classification: K11, K33, O34