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Abstract:
The notion of territoriality, as applied within the classic framework of conflicts analysis, is ambiguous. This ambiguity is illustrated by cross-border torts, for example, the infringement of intellectual property. Classic conflicts analysis allows for localizing such infringement at diverse spots, for example, where acts triggering infringement occur or where damages take place. This ambiguity is not often troublesome in a world of hard copies or products, but it leads to hard cases in cyberspace where transactions cross borders worldwide almost instantaneously. Following classic conflicts analysis, courts tend to vacillate between different arguable countries of infringement, and they thus risk applying the law of one country or another arbitrarily across any global network. This article proceeds from the framework of interest analysis that would resolve any conflict of laws by considering the public policies of the jurisdictions with stakes in the outcome of the resolution. Its premise is that diverse interests from one country to the other are best optimized by following the public policies that underlie the community emerging between countries in the relevant field of law. In the field of intellectual property, courts best look to how policies underlying the international treaty regime, effectively the Berne-Paris/TRIPs regime, compel remedies. As a rule, these policies favor applying the laws of the countries whose markets are targeted or damaged, respectively, as bases for injunctions or compensatory monetary awards. Exceptionally, home law alone may be applied, notably as the basis for enjoining the global hemorrhaging of protected matters or for punitive monetary awards to deter piracy.

Abstract:
This Article seeks to prompt thought about future copyright lawmaking in the light of the past. Its first part draws some hypotheses about copyright functions from copyright history, which it analyzes into three periods. The pre-copyright period extended through the seventeenth century: toward the end of this period, printing generated risks of piracy, and mercantilist European states responded with centralized regimes that both accorded printing monopolies and censored the media. The period of classic copyright ran from the eighteenth to the late nineteenth century: copyright laws allocated rights out to authors, and these rights could then be contractually granted to media enterprises responsive to the public, thus decentralizing decision-making about creating and enjoying works in open markets. The period of global copyright started toward the end of the nineteenth century and continues today: copyrights have been expanded and transplanted to secure income streams for increasingly industrialized media enterprises, allowing them to forge new channels for releasing more works into ever-larger markets.

The second part of the article then considers some copyright issues that are likely to arise in the near future, as the patchwork of media markets and copyright laws worldwide shifts to one networked marketplace. This shift holds very different promises and risks for different industries and authors, as well as for the mass of end-users who now more easily become creators directly inputting into the global marketplace. Given the global and mass reach of the emerging media marketplace, it is argued that, in resolving these issues, lawmakers should increasingly harmonize and simplify copyright rules worldwide. Further, in response to the potential of new media for accelerating both cultural free-riding and feedback, judges may more often have to tailor the scope of rights at the level of remedies.

However, the very novelty of some of these near-term issues often makes it hard to draw appropriate rules and remedies out of traditional copyright rationales. The third part of the article then critiques established utilitarian and natural-rights rationales of copyright to clear the way for new solutions. Neither rationale tells us how much protection suffices to control cultural free-riding, nor when too much protection stifles cultural feedback. Historical evidence supports a bridging doctrine: copyright laws should help to optimize media channels for creativity.

Abstract:
Nation-states, forming a patchwork, have made intellectual property laws for their respective territories and coordinated these laws in the classic Berne-Paris treaty regime, most notably by applying the principle of national treatment. However, with the emergence of global networks, contents typically protected by intellectual property laws increasingly cross many borders at once, and the national laws applicable to online transactions then tend more and more to enter into volatile conflicts. This article initially outlines short-term, strategic options with which private parties might respond to this paradigm shift and then asks how long-term, law-making methodologies should take account of such options in the light of public policy. In the short term, self-help measures, such as encryption, in tandem with system-specific software and contractual rules, can be used to supplement intellectual property laws both to protect contents online and to maximize profits from such contents. Also, conflicts of laws, as well as varying jurisdictional rules, can be manipulated in litigation between private parties with divergent interests, for example, between content-providers, service-providers, and end-users. It is here argued that, in the long term, recourse to the classic treaty regime coordinating the patchwork of national laws does not suffice to optimize the results of such strategies either for private parties or for the public. Guidelines are proposed to that end: (1) avoid patchwork law-making; (2) organize private-public initiatives to elaborate network law; and (3) formulate such law compatibly with diverse cultures.

Abstract:
This article presents a framework for analyzing conflicts of laws in cross-border copyright cases. It introduces methods for dealing with conflicts of laws, notably characterization, finding false conflicts, and tailoring remedies to defuse policy tensions. Most importantly, it explains how the international treaty system may come into play when such tensions arise in copyright cases. On that basis, it outlines solutions for conflicts of laws that concern copyright infringement and ownership.

The article argues in favor of localizing any allegedly infringing act in a country only if the transaction including that act is incoming relative to that country. At the initial stage of suit, a court may base preliminary injunctions on copyright law common to the countries that constitute most of the markets or audiences that cross-border transactions are likely to prejudice. At the end of suit, the court should base monetary liability on the copyright law of a given country for actionable damages or gains that the transactions at issue have caused only in that country's local market or audience. This approach allows for predictably resolving conflicts of copyright laws in cyberspace, while it minimizes the extraterritorial application of such laws.

The article then addresses conflicts of laws affecting the ownership of copyright. Where laws conflict with regard to vesting copyright, the article argues in favor of initially allocating rights consistently with the consensus of the parties generating the work at issue. Further, the article explains criteria for distinguishing between choice-of-law approaches, on the one hand, to rights transferred by contracts and, on the other, to contracts themselves. It also sorts out conflicts of law in cases of transfers that are made as a matter of law.

Finally, the article explores basic tensions that arise between policies in hard cases of copyright conflicts. In the light of its preceding analyses, it delineates the respective limits of judicial, legislative, and treaty attempts to resolve such tensions.

Copyright, infringement, ownership, chain of title, conflict of laws

Abstract:
This paper concisely analyzes how we have reached the present juncture in the field of intellectual property and ventures some ideas on how research might move forward. First, the paper outlines how the classic laws of copyright and patents crystallized in the eighteenth century, when they started to help trace the boundaries between the right-holders and subject-matters of intellectual property in relation to the rest of the world. Second, the paper argues that these boundary structures have been dissolving since the nineteenth century: right-holders have gone from individuals to corporate firms to networked collaborators; subject-matters have been inflated as the notions of works and inventions have become open-ended and rights have proliferated along the spectrum from data to algorithms; accordingly, rights have formed thickets that obstruct licensing and rules have become muddy, while these trends are compounded with globalization. Third, and finally, the paper broaches a few lines of inquiry that these historic shifts open up: what thresholds for remedies differentiate products of mind? what measures determine liability, if any, for creative or innovative takings? how to allocate rights in the products of networked collaboration? how to globalize procedures to settle disputes? These questions are raised only as examples to prompt further research.

Intellectual property, copyright, patent, history, infringement, remedies, networks

Abstract:
How to use the Internet to meet the worldwide patent crisis? Technological progress, swamping patent offices with filings, has provoked this crisis. Patent offices are neither efficiently examining filings nor optimally disclosing inventions. In response, this article proposes an interim solution. To start, new technologies would be posted on the Internet, and thus made searchable as soon as posted, within a globally distributed database. Further, certifications of such postings for completeness and novelty would serve as prima facie evidence for courts to enjoin literal infringement, even across borders, pending patent grants. Finally, such judicial relief would be coordinated with proceedings to shepherd the contributors to a technology into settling their royalty disputes worldwide. If instituted with appropriate treaty provisions, the regime proposed here would supplement, but not supplant, national and regional patent systems. Not only would this regime globalize specific patent procedures cost-effectively, but it would help to harmonize substantive patent laws. This proposal should also serve as a thought-experiment to challenge current premises about the international patent system.

Abstract:
This article asks: What should be the scope of copyright protection? To illustrate this question, Part I considers a hypothetical suit based on art history. In this suit, Hiroshige sues Van Gogh for copying a pair of his wood-block prints in studies in oil. (Exhibits in the published version present one such print and one such study in colored reproductions.) Part II then explains how determining the scope of copyright in such cases leads into a basic dilemma. On the one hand, if this scope is too narrow, copyright law fails to prevent free-riding that undercuts incentives for creating and disseminating works to enhance culture. On the other, if this scope is too broad, copyright law risks stifling the feed-back of works indispensable for creating new culture. In our hypothetical, for example, an injunction against Van Gogh or his heir would hold back seminal works in modern art. No attempt is made here to evade this dilemma by invoking copyright exceptions, such as fair use, that vary from law to law. Rather, Part III of the article undertakes the comparative analysis of doctrines that limit infringement analysis in copyright laws generally. These include, most notably, the idea-expression distinction, merger and related doctrines, and those guiding the sliding-scale analysis of infringement. Such doctrines are brought together in a new framework of analysis, which delineates a full spectrum of processes for appropriating works that include rote copying, knowledgeable reworking, and innovative recasting. For example, a close viewing of our case, aided by expert analysis, shows how Hiroshige's visual schemes were innovatively recast by Van Gogh. Part IV argues that remedies should be fashioned with an eye to where a case falls along just such a spectrum. Following the proposed framework of analysis, rote copying would trigger a full panoply of remedies, knowledgeable reworking would call for only discretionary injunctive remedies and apportioned monetary awards, and innovative recasting would preclude most injunctive orders but not apportioned awards. For example, Van Gogh would not be enjoined, but might owe Hiroshige some share of profits. These guidelines are further illustrated in some detail in diverse contemporary cases. The conclusion stresses that the framework of analysis here is experimental. But the lesson remains: remedies should be adjusted to the extent of infringement.

Abstract:
This essay asks: How did we get into the current crisis of copyright law, and how to move beyond it? This crisis developed as proliferating and expanding rights entered into tensions with each other and with exceptions. It has become acute as media progress has brought cultural creations into the internet and the darknet: we now face ever-harder copyright cases. This essay proposes principles to help courts resolve such cases: it bases its proposals on the rationales that it finds common to the laws of copyright and of authors' rights. At the start, to assure that such rights operate coherently, they are so defined, and remedies so articulated, that creators may not interfere with each other as they feed culture. Then, to meet real-world informational needs, rights are limited in time and made subject to exceptions from which end-users can benefit by relying on common sense alone. Further, for the sake of clarity and equity in copyright commerce, transfers are to be construed restrictively, and failures to license are to estop subsequent claims. Finally, overriding principles of privacy, of free expression, and of legality set parameters for enforcing rights. In conclusion, consequences are drawn for changing copyright doctrine and law. Visual examples, referenced online, illustrate the essay.

copyright, authors' rights, history, culture, crisis, internet, darknet, principles, doctrine, remedies

Abstract:
Globally, copyright laws are in crisis. How to rethink the international framework for copyright reform? The Berne Convention, plus the TRIPs Agreement and the WIPO Copyright Treaty, constitute this framework. If Berne-plus treaty terms are literally interpreted, they form a framework that leads to bundling rights and exceptions in the varying permutations of national laws. As a result, in a world of more powerful media and proliferating cross-border cases, diverse copyright laws increasingly risk entering into volatile conflicts. The Berne-plus framework then needs to be reconstrued to assure the globally coherent and equitable application of laws that, worldwide, are to be reformed pursuant to its conditions. This essay argues that, to that end, we need to reconceptualize copyright bundles in terms of a core author's right of communication. As a corollary, we need to move from multiplying exceptions to rights toward limiting rights definitionally. This essay analyzes how courts, in cross-border cases, may commence this paradigm shift.

copyright, author's right, international treaties, conflicts of laws, core right