International Issues: Which Country's Law Applies When Works are Made Available Over the Internet?

"My topic is International Implications, a topic that would not exist but for the Internet. When access to archival materials was on a physical basis, patrons came to the archive and consulted the material on site; the material did not leave the archive, much less get sent overseas. Even digitized materials, if consulted on site, do not present the problems that arise if the archives puts this material on a website, which is accessible around the world, that ubiquity being the default condition of the Internet.

Recent Developments in US Copyright Law – Part II, Caselaw: Exclusive Rights on the Ebb?

The 1976 Act announces broad exclusive rights, offset by a myriad of specific exemptions, and one wide exception for fair use. In words and intent, the exclusive rights are capacious, but new technologies may have caused some of the general phrases to become more constraining than might have been expected from a text whose drafters took pains to make forward-looking. Thus, the scope of the reproduction right turns on the meaning of copy; the reach of the distribution right on distribute copies and transfer of ownership; the range of the public performance right on public and perform. Entrepreneurs and users of new technological means of exploiting copyrighted works have urged narrow constructions of each of these terms, arguing that broad interpretations will chill future innovation (and suppress present markets for copyright-exploiting devices or services). Copyright owners, concerned that unfettered new uses will supplant traditional copyright-controlled markets, have contended that the literal language, or, failing that, congressional intent, encompass the contested use. In addition, new technologies have called into question the identification of the person who does the copyright-implicating acts. Who makes a copy when the act is decomposed into steps taken by different actors? Who performs or displays a work when the work resides on one person\u27s server, but the public perceives it through another person\u27s website? Several US courts have narrowly construed the reach of the exclusive rights of reproduction, distribution, public performance and public display, thus putting into doubt their efficacy in the digital environment. In particular, the Second Circuit\u27s recent decision in Cartoon Networks v. CSC Holdings, if followed, could substantially eviscerate the reproduction and public performance rights. The growing number of decisions rejecting a making available right attests to some difficulties in adapting the distribution right to online exploitation. By contrast, one bright spot for authors appears in the area of moral rights, in which digital media may provide a means to make at least some authors\u27 attribution interests enforceable. Because the decisions emanate from lower courts, including first-level courts, it is too soon to discern whether US copyright law is adopting a constricted conception of the scope of the economic rights under copyright, and if so, whether the decisions betoken an evolving (if often unarticulated) determination that copyright prerogatives should yield to technological preferences. In either event, the analyses and results contrast with solutions adopted in the European Union, and, in some instances, may be in tension with the US\u27 international obligations

Conflicts of Copyright Ownership Between Authors and Owners of Original Artworks: An Essay in Comparative and International Private Law

Most, if not all, copyright laws distinguish between ownership of the incorporeal copyright, and ownership of chattels. A generally-accepted corollary holds that alienation of the chattel that constitutes the material form of a copyrighted work does not carry the copyright with it. Applying this principle to works of the visual arts, it should be clear that sale of a painting, even if it is the only copy of a work, is not a transfer of the exclusive rights under copyright to reproduce the work or to create derivative works based on the painting. Similarly, ownership of the copyright confers no rights as to the material object. The artist (or her successor) owns the incorporeal exploitation rights; the purchaser of the painting is entitled to the quiet enjoyment of his chattel. However, the distinction is not as impermeable as this exposition would suggest. On the one hand, the artist\u27s rights, particularly her moral rights as enforced in some countries, limit the prerogatives of the owner of the art object. On the other hand, the owner may impinge upon, or indeed fully displace, the author\u27s pecuniary rights, in those copyright systems that presume a transfer of copyright ownership together with the alienation of the original object, or that attribute initial copyright ownership to the party that commissions the creation of the artwork. The potential conflicts between artists and artwork owners have recently assumed an unprecedented importance. Until recently, the market for artworks was a market for originals. The value of the copyright rights of reproduction and adaptation was sufficiently negligible that artists directed most of their copyright-reforming efforts toward securing the droit de suite, or artist\u27s resale royalty on subsequent transfers of the chattel Now, by contrast, the market for art merchandizing properties – reproduction or adaptation of art images on an ever-expanding variety of products, from paper goods, to clothing, to household items, to computer screen fillers, etc. – affords a significant and growing source of income to copyright owners. Thus, determining who is in fact the copyright owner, as between the artist and the purchaser of the art object acquires a practical urgency. But differences in national copyright laws, and in approaches to international conflicts of law, may make this determination complex if not elusive. In this Article, I will first discuss the various points of contact, or conflict, between the rights of artists and of artwork owners in comparative law (primarily the U.S. and France). I will then consider how international private law rules applied in the U.S. and in Europe would (or perhaps should) designate the national law competent to resolve the conflict in copyright ownership between artists and purchasers

The 1593 Antonio Tempesta Map of Rome

This Essay examines Florentine painter and engraver Antonio Tempesta’s 1593 petition for a Papal printing privilege on his great bird’s-eye view Map of Rome. The arguments Tempesta made in support of his request for the exclusive rights to print, sell and control variations on his map evoke justifications spanning the full range of modern intellectual property rhetoric, from fear of unscrupulous competitors, to author-centric rationales. Invocations of labor and investment and unfair competition-based justifications were familiar – indeed ubiquitous – in Tempesta’s time, and still echo today. Long before the 1710 British Statute of Anne (vesting exclusive rights in authors), the precursor regime of printing privileges had well understood printing monopolies to be incentives to intellectual and financial investment. The pre-copyright system thus firmly established one of the philosophical pillars of modern copyright law. Tempesta’s petition, however, goes further than its antecedents with respect to the second pillar of modern copyright law, the natural rights of the author, a rationale that roots exclusive rights in personal creativity. Tempesta focused the rights on the creator, and equated creativity with his personal honor, thus foreshadowing a moral rights conception of copyright

Conundra of the Berne Convention Concept of the Country of Origin

This essay explores one of the most important, but occasionally intractable, issues under the Berne Convention, the concept of Country of Origin. Article 5(4) of that treaty defines a work’s country of origin, but leaves out several situations, leaving those who interpret and apply the treaty without guidance in ascertaining the country of origin. I will call those situations the “Conundra of the country of origin,” and will explore two of them here. First, what is the country of origin of an unpublished work whose authors are nationals of different countries? Second, what is the country of origin of a work exclusively made available over digital networks? In both situations, in the absence of treaty specification, the work may have multiple countries of origin. A plurality of countries of origin may be problematic because, under Berne art. 5(3) “Protection in the country of origin is governed by domestic law.” Berne minimum protections do not apply to local works in their countries of origin. As a result, the greater the number of countries of origin, the fewer the number of countries in which the work must receive the minimum Conventional coverage. Even where minimum protections may apply, variations in the country of origin can affect the calculus of copyright term under art. 7(8), the availability of coverage for works of applied art under art. 2(7), and claims to artists’ resale royalties under art. 14ter; in all those cases, the availability of protection turns not on national treatment, but on reciprocity with the country of origin

International Issues: Which Country\u27s Law Applies When Works are Made Available over the Internet

My topic is International Implications, a topic that would not exist but for the Internet. When access to archival materials was on a physical basis, patrons came to the archive and consulted the material on site; the material did not leave the archive, much less get sent overseas. Even digitized materials, if consulted on site, do not present the problems that arise if the archives puts this material on a website, which is accessible around the world, that ubiquity being the default condition ofthe Internet. Let us consider some problems that might arise and which have international consequences. First of all, with respect to contract law, what was the scope of the authorization set out, for example, in the donor agreement? Does the agreement permit digitization? Is there any indication that the agreement contemplated digitization at all? Does the agreement permit making material available overseas? Any indication that was considered

See Me, Feel Me, Touch Me, Hea[r] Me (and Maybe Smell and Taste Me, Too): I am a Trademark – A US Perspective

The preceding chapter, “Between a sign and a brand,” addresses the current law in the UK and the EU regarding which signs can be a registered trademark, and the scope of protection a trademark receives. Jennifer Davis also considers the extent to which that scope does or should cover the more ineffable subject matter of “brand values.” This comment from the perspective of United States trademark law will follow a similar plan. It first will address what is (and is not) a trademark, focusing on the extensions of trademarks beyond traditional word marks and design marks (logos; trade dress [get-up]) to the more controversial categories of product shape, colors, sounds, smells, tastes and touch. It then will explore the scope of protection, particularly with reference to recent legislation concerning “dilution,” representing Congress’ latest attempt to provide greater legal security to the “commercial magnetism” of famous marks, while recognizing the free speech interests in the parodies, critiques and comparisons those marks also attract. In US trademark law, state common law and federal statutory regimes cohabitate: statutory protection under the Lanham Federal Trademarks Act adds to but does not fully supersede the underlying common law rules and rationale for trademark protection. Thus, for example, carrying forward the common law rule that “There is no such thing as a property in a trade-mark except as a right appurtenant to an established business” a mark will not be registered unless it has been “used in commerce