Conflicts of Laws in Copyright Cases: Infringement and Ownership Issues
Paul Edward Geller
Independent - Attorney
Journal of the Copyright Society of the USA, Vol. 51, p. 315, 2004
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.
Number of Pages in PDF File: 80
Keywords: Copyright, infringement, ownership, chain of title, conflict of laws
JEL Classification: K10, K33, K41, L82, O34
Date posted: October 17, 2004 ; Last revised: January 7, 2015
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