July 29, 2003
I have started to learn about international copyright law and thus issues of jurisdiction and choice of law in general. To be perfectly honest, they make very little sense to me. I need to get a hold of Paul Goldstein’s copyright book, I think, just so that I have something on hand with brief overviews of copyright subjects. I don’t have anything comprehensive to say, but here are some interesting bits I’ve found along the way:
1. As mentioned awhile ago, read Jonathan Zittrain’s “Be Careful What You Ask For: Reconciling a Global Internet with Local Law.”
2. The main issues I run into are:
b) National treatment – each Berne Convention member must be foreigners as if they were nationals (see Article 5.1). (The Berne Convention creates “substantive minima” that all member countries must meet.) There are varying interpretations of this, see this article.
c) Choice of law – which law do you apply to a foreign national. The above article goes into this issue. So does this article about a Russian copyright case in the US.
Both articles separate out two issues: infringement and ownership. Infringement is dealt with by national treatment under the Berne Convention. For instance, if you sue for infringement in the US, the applicable law for infringement is US law regardless of where the copyright holder is from. But for ownership of the work, it’s necessary to determine which country has the closest connection to the copyrighted work. I’m not really sure why national treatment doesn’t apply here. The Gigalaw article explains it, but I don’t see how US’s adoption of the Berne Convention supports it.
Two other articles I was reading, “The Architecture of the International Intellectual Property System” by Graeme B. Dinwoodie and “Valuing ‘Domestic Self-determination’ in International Intellectual Property Jurisprudence” by Graeme W. Austin, noted some cases that complicate the issues further. (Check out the whole law review edition, too). In many cases, the US has declined to deal with infringement that occurs in a foreign country. In others, it has not. In certain cases, it has even applied foreign copyright law in domestic cases. Here are some cases I need to look at, the first of which deals with applying foreign law to domestic infringement. (Note: I haven’t read these yet)
Boosey & Hawkes Music Publishers, Ltd. v. Walt Disney Co., 145 F.3d 481, 484 (2d Cir. 1998)
Carell v. Shubert Org., Inc., 104 F. Supp. 2d 236
Frink Am., Inc. v. Champion Road Mach., Ltd., 961 F. Supp. 398
Armstrong v. Virgin Records 91 F. Supp. 2d 628
3. If you don’t know about it already, you should check out the Emily Somma case.