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

From Hypatia to Victor Hugo to Larry and Sergey: ‘All the World\u27s Knowledge’ and Universal Authors’ Rights – The 2012 British Academy Law Lecture

Access to ‘all the world’s knowledge’ is an ancient aspiration; a less venerable, but equally vigorous, universalism strives for the borderless protection of authors’ rights. Late 19th-century law and politics brought us copyright universalism; 21st-century technology may bring us the universal digital library. But how can ‘all the world’s knowledge’ be delivered, on demand, to users anywhere in the world (with Internet access), if the copyrights of the creators and publishers of many of those works are supposed to be enforceable almost everywhere in the world? Does it follow that the universal digital library of the near future threatens copyright holders? Or are libraries the endangered species of the impending era, as publishers partner with for-profit Internet intermediaries to make books ubiquitously available? Does access-triumphalism therefore risk giving us not the universal digital library, but the universal digital bookstore? And, whether libraries or commercial intermediaries offer access, how will the world’s authors fare

Floors and Ceilings in International Copyright Treaties: \u3cem\u3eBerne/TRIPS/WCT Minima and Maxima\u3c/em\u3e

This paper addresses “floors” – minimum substantive international protections, and “ceilings” – maximum substantive international protections, set out in the Berne Convention and subsequent multilateral copyright accords. While much scholarship has addressed Berne minima, the “maxima” have generally received less attention. This Comment first describes the general structure of the Berne Convention, TRIPS and WCT regarding these contours, and then analyzes their application to the recent “press publishers’ right” promulgated in the 2019 EU Digital Single Market Directive. Within the universe of multilateral copyright obligations, the Berne maxima (prohibition of protection for facts and news of the day), buttressed by the TRIPS and WCT exclusion of protection for ideas, methods and processes, should promote the free cross-border availability of facts and ideas, as well as of exercise of the Berne Convention mandatory exception for the making of “quotations” from publicly-disclosed works. Individual Berne countries of origin may protect excluded subject matter or preclude mandatory exceptions in their own works of authorship, but not in foreign Berne works. Nonetheless, Member States might be able to elude Conventional maxima by resort to copyright-adjacent sui generis rights, such as the Digital Single Market Directive’s new press publisher’s right. This Comment considers the extent to which Conventional maxima may nonetheless have a preclusive effect on such maneuvers

Copyright Without Borders? Choice of Forum and Choice of Law for Copyright Infringement in Cyberspace

The disjunction between territorial treatment of copyright claims and the ubiquity of cyberspace has led some commentators to urge abandonment of landlocked notions of judicial and legislative competence. Since digital communications resist grounding in particular fora, or governance by individual national laws, these writers contend it would be best to devise a cyberian legal system that would supply cyber-specific substantive copyright law, and/ or virtual dispute settlers whose competence – and whose determinations – would transcend national borders. My analysis will be more earthbound. This is not to belittle the important ongoing efforts to achieve international harmony of substantive copyright rules. Nor is it in any way to disparage the virtual magistrate concept, under which parties (especially copyright holders and on-line service providers) would remit their disputes to on-line arbitrators. Rather, as a practical matter, I doubt that either of these approaches will immediately displace national disparities in copyright rules or adjudication in national courts. As a result, I will consider how courts may apply existing principles of judicial and legislative competence to resolve as fully as possible in a single forum a claim of multinational copyright infringement occurring through cyberspace. To keep an admittedly complex inquiry relatively simple, I will limit the focus of the analysis to U.S. legal concepts of judicial and legislative competence ... I acknowledge, however, that U.S. concepts may sometimes differ significantly from those applied in other common law or civil law countries