The “Unauthorised Reproduction” of Treaties?

by Duncan Hollis

As I mentioned a few weeks back, I’ve been collecting treaty clauses for my book, The Oxford Guide to Treaties, on everything from NGO participation in treaties to their denunciation.  In doing so, I tried to cast a wide net, sampling treaties from a wide variety of bilateral and multilateral contexts involving all sorts of States and all sorts of subjects.  As part of that effort, I’d wanted to include some treaties drafted under UNIDROIT‘s auspices.  But, when I went to do so, I encountered the following warning on UNIDROIT’s website for the Convention on International Interests in Mobile Equipment and its Protocol:

Unauthorised reproduction of these texts (other than for personal use) is prohibited: requests for authority to reproduce the texts should be addressed to the UNIDROIT Secretariat (info [at] unidroit [dot] org).

I’d never seen anything like this with a treaty instrument.  But I took the path of least resistance and e-mailed UNIDROIT for permission to sample some of the convention’s final clauses for the book.  I had a brief exchange with a UNIDROIT officer to clarify my request, which led to . . .  nothing. Radio silence.  Given other demands on my time, I decided the world could live without any UNIDROIT treaty clauses in my sample set, and I moved on to other treaties.

Still, looking back on it now several months later, I remain puzzled by the UNIDROIT pronouncement.  Was UNIDROIT asserting some sort of intellectual property in these treaties, and, if so, under what authority?  I know that, notwithstanding UN Charter Article 102, some States continue to conclude “secret” or “classified” treaties (both the US and the Netherlands have domestic statutes authorizing the practice), in which case readership is limited to only those within the respective State governments or IOs cleared to access them.  And, of course, there’s the idea that many treaties will not afford individuals the right to invoke the treaty in litigation, as opposed to treaties that do accord private rights of action.  But the UNIDROIT qualification is quite distinct from such issues.  It’s not that the treaty text is secret — indeed, you can download it on the UNIDROIT website.  And, the subject-matter of this treaty — international financing of mobile equipment — inevitably means that its terms regulate the rights and duties of not just States, but individuals and other non-State actors as well.

So, what does it mean for UNIDROIT to purport to prohibit “unauthorised reproduction” of this Convention and its Protocol?  There’s an exception for “personal use” but that confuses me too.  I can’t shake the image that it’s OK to print out a copy of the Cape Town Convention to display on my wall (because that’s the sort of thing I might do with a treaty, but really, who else would?).  But what if I wanted to reproduce a copy of it to provide to a client?  Or, what if I wanted to append it to a law review article on the Cape Town Convention itself? And, that’s not even getting into enforcement questions — namely, under what law is reproduction prohibited, and who would enforce it in case of a violation?

I’d be interested to know what others make of the UNIDROIT assertions of authority over distribution of treaties negotiated under its auspices.  Can UNIDROIT do this?  And, even if it can, is it a good idea to do so?

http://opiniojuris.org/2012/05/08/the-unauthorised-reproduction-of-treaties/

4 Responses

  1. It sounds like they’re just asserting copyright. Whether they can depends on your domestic copyright law. Applying Dutch law, the Copyright Act (art. 11) explicitly rejects copyright for statutes, case law, etc., so there the only question is whether there is a Treaty obligation that trumps that. Under US law, I have no idea.

  2. On a related note, the UN has time and again attempted to assert copyright on its own publicly available material, including ICTY and ICTR judgments (!!). They say that “If publishers reproduce and sell UN content found online or elsewhere without proper permission … this is rather close to stealing”.

  3. The site also includes a copyright notice that reads:

    “UNIDROIT has established this site to facilitate and enhance public access to information about the work and achievements of the Organisation. Reproduction of the information is authorised, except for commercial purposes, provided the source is duly acknowledged.

    “For special requests and information concerning translation, reproduction, distribution of UNIDROIT material please contact publications [at] unidroit [dot] org.”

    Perhaps that address will produce results.

  4. The reason for this problem is that UNIDROIT was not the sole sponsor of the Cape Town diplomatic conference. The International Civil Aviation Organization was co-sponsor, and it insisted that it had copyright. UNIDROIT has not interest in limiting the use, publication or distribution of any of its instruments.

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