Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



Thoughts on Proposed Egyptian Extra-territorial Charges on Duplication of Historic Egyptian Monuments

News is swirling that Egypt is planning to pass a law requiring payment of royalties whenever its historic Egyptian monuments are reproduced.  Mr. Zahi Hawass, the Head of Egypt's Supreme Council of Antiquities has indicated that the law will be applied to all countries of the world.  Mr. Hawass has also indicated that "it is Egypt's right to be the only copyright owner for these monuments ..."

The proposed legislation is clearly extra-territorial in nature.  The law will reach beyond Egypt's borders.  Generally speaking, extra-territorial laws are problematic because they are rarely transparent in nature and are often discriminatory.  Further fair dispute settlement mechanisms are rarely provided for in the measures.

Speaking of discriminatory, it is questionable whether the proped law is contrary to various WTO Agreements (the GATT if we are talking about the finished goods, GATS if we are talking about the services of making the replica, or TRIPS if we are talking about the intellectual property.  All three WTO Agreements prohibit discriminationary treatment whereby goods, services, IP from other WTO members are treated differently than domestic goods, services and IP.  Mr. Hawass' statements indicate that Egypt may have a most-favoured nation issue if the proposed measure is passed.  Further, Egypt may have a national treatment issue if it does not apply the measures uniformly and grants preferences to any one WTO Member.

There are also questions as to whether Egypt is prevented from passing this law based on concessions granted in its free trade agreements. It is entirely possible that the EC-Egypt FTA prohibits the proposed measure.  If Egypt creates an exception for the EC concessions, then arguments may be raised that Egypt is breaching its WTO national treatment obligations.

Finally, this is a slippery slope towards more protectionism.  What if Canada passed similar legislation charging fees for the reproduction of the CN Tower, totem poles and Inukchuks?  What if France passed similar legislation charging fees for the reproduction of the Eiffel Tower, Notre Dame and other monuments?  What if the United States passed similar legislation charging fees for the reproduction of historic monuments and eagles?  Each country could develop a list of their unique and recognizable symbols.

Egypt's plan may back-fire in terms of trade; but also in terms of interest in Egyptian historic monuments. If the citizens of the world do not have things to stimulate their interest in the Pyramids and the Sphinx, they may not trave to Egypt to see the original monuments - which I am sure are more spectacular than any second-rate reproduction. 

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