Conflicts of Laws in Copyright Cases: Infringement and Ownership Issues
Journal of the Copyright Society of the USA, vol. 51 (2004), pp. 315-394
80 Pages Posted: 17 Oct 2004 Last revised: 9 Aug 2016
Date Written: 2004
This article presents a framework for analyzing conflicts of laws in cross-border copyright cases. It introduces methods for dealing with such conflicts of laws, notably methods of characterization, of disentangling true from false conflicts, and of tailoring remedies to defuse policy tensions. Most importantly, it explains how the international treaty regime may come into play when such tensions arise in hard cases. On that basis, it outlines solutions for conflicts of laws that concern copyright infringement and ownership.
To start, the article argues in favor of localizing any allegedly infringing act in a country only if the course of conduct including that act threatens to be, or is, completed in that country. At the initial stage of suit, a court may base preliminary injunctions on such law as is 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 assess monetary liability by applying the copyright law of a given country for actionable damages or gains that the transactions at issue have caused in that country's own market or audience. This approach allows for predictably resolving conflicts of copyright laws in cyberspace, while it minimizes the extraterritorial application of such laws.
Further, the article addresses conflicts of laws affecting the ownership of copyright. Rights best vest according to the law of the country where infringement subject to the rights is localized. Where this solution is unworkable, rights may be allocated consistently with the consensus of the parties generating the work at issue. Criteria are proposed for deciding when to follow choice-of-law approaches, on the one hand, to rights transferred by contracts and, on the other, to contracts themselves. Conflicts of law are sorted out 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.
Keywords: Copyright, infringement, ownership, chain of title, conflict of laws
JEL Classification: K10, K33, K41, L82, O34
Suggested Citation: Suggested Citation