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

The Court of Justice of the European Union Creates an EU Law of Liability for Facilitation of Copyright Infringement: Observations on Brein v. Filmspeler [C-527/15] (2017) and Brein v. Ziggo [C-610/15] (2017)

After a series of decisions in which the Court of Justice of the European Union appeared to be cutting back on the application of the right of communication to the public with respect to the provision of hyperlinks, the Court’s most recent decisions in Brein v. Filmspeler (C-527/15) and Brein v. Ziggo (C-610/15) concerning, respectively, sale of a device pre-loaded with hyperlinks to illegal streaming sites, and The Pirate Bay BitTorrent platform, indicate instead that the Court’s prior caselaw was in fact gradually advancing toward a European harmonization of the law on derivative liability (i.e., liability in the second degree) for violation of the right of communication to the public. These two most recent decisions have now achieved that harmonization. Moreover, harmonization was necessary given both the lack of uniformity regarding secondary liability across the national laws of the member states, and the growing economic importance of furnishing the means to access infringing sources (without serving as the initial source of the infringing communication). This article will first briefly review of the facts of the cases. It then will examine how the Court’s reasoning results in a European law of communication to the public that reaches actors who do not originate illicit communications, but who knowingly facilitate them (I). Next, the analysis will show that the harmonized law of derivative liability can be considered the flip side of the law of non-liability for “the storage of information provided by a recipient of the service,... for the information stored at the request of a recipient of the service” already harmonized by art. 14 of the eCommerce directive 2000/31 (II). The article concludes with a brief postscript evoking some comparisons with U.S. copyright law

Copyright Without Walls?: Speculations on Literary Property in the Library of the Future

This essay considers the application and adaptation of copyright law to the library of the future. In this library without walls, works will be accessible by computer to users near and far. While a printed book usually is read by only one person at a time, that same book in digital format may be simultaneously consulted by as many users as have PCs linked by modem to the library. Where collecting quotations from printed sources today requires transcription or photocopying, in the library of the future it may be possible to download and print out excerpts, or even the entire work, through the user\u27s personal computer. All of these uses involve reproductions or transmissions of the accessed works. Unless the works are in the public domain, these uses, if unauthorized, may be copyright infringements – at least under today\u27s doctrines. Are literary property rights as we have known them inimical to a networked environment? Or can there be copyright without walls? If copyright requires walls, what will replace it, and will the replacement prove more satisfactory to libraries and their users? Although some librarians have lamented the restrictive effects of copyright, and perceived overreaching applications by publishers, a world without copyright may prove even less user-friendly. The reason is simple: in such a world, the information supplier, relying on contract, forgoes the benefits of the copyright law, but also evades important limitations on the copyright monopoly, notably the fair use privilege. In such a world, librarian-users might look back on existing copyright law with wistful nostalgia

Overview of Copyright Law

This article offers an overview of copyright in general in common law and civil law countries, with an emphasis on the U.S. and the European Union. It addresses the history and philosophies of copyright (authors’ right), subject matter of copyright (including the requirement of fixation and the exclusion of “ideas”), formalities, initial ownership and transfers of title, duration, exclusive moral and economic rights (including reproduction, adaptation, public performance and communication and making available to the public, distribution and exhaustion of the distribution right), exceptions and limitations (including fair use), and remedies. The article also covers the liability of intermediaries, and new copyright obligations concerning technological protections and copyright management information. It concludes with some observations concerning the role of copyright in promoting creativity and free expression