Study On The International Jurisdiction In Copyright Infringement Cases

From the beginning, copyright protection for foreign authors was based onindependent rights granted country by country. This model was adopted by BerneConvention, which is the first “international copyright” convention in the world,through national treatment principle, and followed by other international conventionsto date. This approach, which gives foreign authors equal treatment as nationals, issaid to be the most effective method during that time when there almost no effectivecopyright protection for foreign authors. However, territorial character of copyrightprotection is considered as the obstacle of cross-border copyright litigation, andcopyright has for a long time been an area without any conflict of laws rules. With theeconomic and social development, this statement seems obsolete, even though wehave no excuse to deny that the principle of territoriality in copyright protectionimpeded the development of choice of law for copyright. By contrast, whether theprinciple of territoriality in copyright protection has any effect on determining thejurisdiction in cross-border copyright litigation almost neglected by scholars andpractitioners, for the reason of limited practice and so on. This issue deserves us takeit seriously, especially in network environment. The main objective of this dissertationis to determine which rule may be suitable for copyright infringement cases, inparticular meet the demand of network development. This issue may divide into twoparts: first, whether the jurisdictional rules in torts suit for copyright infringement,provided the principle of territoriality in copyright protection; second, whether therules created by practices or proposed by scholars suit for online copyright infringement. This dissertation argues that the general tort jurisdictional rule not fullysuit for copyright infringement cases because of the principle of territoriality, however,this principle will not block the development of effective jurisdictional rules satisfiedthe need in network society.Besides the Introduction, this article is divided into four chapters.The first Chapter interpreted the reason why there was no substantial development ofcross-border copyright litigation. After tracing the genesis of cross-border copyrightprotection, it is find that the mean of the principle of territoriality no only include therights conferred limited to granted country, but also that other countries exceptedgranted country will not recognize and enforcement it. This feature keeps intact evenafter the conclusion of Berne Convention, that is to say, what Berne Conventiontackled was how to give foreign authors copyright protection beyond originalcountries, other issues left resolved by the contracting states concerned. The practicein UK and US confirmed the said interpretation. In UK, before Supreme Court’sLucasfilm case, claims based on foreign copyright law were rejected through “NonJusticiability” theory. Generally, in US, courts may decline to assert jurisdictionthrough “Forum Non Conveniens” Doctrine in Multiterritorial copyright infringementcases, in particular the parties concerned are foreigners. Provided these two countries’enormous influence in19thand20thcenturies, we will find that these theories ofdeclining to assert jurisdiction impede the development of cross-border litigationrules.Based on the first Chapter, the second Chapter probes whether traditionaljurisdictional rules suit for copyright infringement cases when countries not to declinejurisdiction solely because the claims brought grounded on foreign copyright law.This chapter analyses the basis of jurisdictional determination in EU and US, theapproach to assert jurisdiction, especially how to determine general jurisdiction,special (specific) jurisdiction, subject matter jurisdiction (US) and exclusivejurisdiction. After the comparison of these two regimes’ practice, we find that incross-border copyright infringement cases there is no room for exclusive jurisdiction,besides this, how to determine general jurisdiction in US and EU converged, and the jurisdiction in defendant’s domicile (habitual residence) is not premised on thepresence of protected rights in the country where the court seized. However, as far asspecial jurisdiction is concerned, there was wide divergence on whether traditionaldichotomy in tort jurisdiction, namely “the place of the event giving rise to damage”and “the place where the damage occurred” suit for copyright infringementjurisdiction. This author argues that this dichotomy is not fully suitable. Evenrecognized in copyright infringement cases, these two places coincide in the countrywhere protection is conferred.The third Chapter discusses the influence of internet on the determination ofjurisdiction in copyright infringement cases. The analysis focuses on the approachescreated by EU and US when faced the challenge of internet, for example,“slidingscale” standard (and amendment) proposed and applied by US courts;“aim at”,“(individually) target” or “direct” standard in US and EU member countries. However,“target” standard hasn’t been a recognized criterion when the European Court ofJustice interpreting tort jurisdictional rule in Brussels Regulations, on the contrary,“accessibility” is a suitable criterion even in copyright infringement cases. Besides,the difficult faced by US courts in online pirate cases when interpreting the meaningof “damage” in “long-arm statute” also demonstrates that traditional “physical”conception is not suit for intangible rights, such as copyright. These standards,criterions affirmed such perception, that is, in online environment, at least to date,there is more divergence than consensus. We should find effective and suitablestandards (or criterions) to tackle these thorny questions, not just for parties concerned,but also for all of the people. That need is urgent provided the immense value ofcopyright or other intellectual property.The fourth Chapter canvasses the propositions proposed by four projects, that is,“Judgment Convention (draft)” of Hague Conference of Private International Law,ALI Principles, CLIP Principles and “Joint Proposal” drafted by Japan and Koreascholars. Because of the failure of “Judgment Convention” negotiation and withoutconsensus on the jurisdiction in intellectual property and E-Commence, scholars fromUS first take steps to draft proposal specific to intellectual property, then scholars from EU and East Asia respectively draft those proposals. So far as ALI Principles,CLIP Principles and “Joint Proposal” are concerned, there are some common viewson following issues: first, the general jurisdiction rules in these three proposals aresubstantially the same, and the exercise of general jurisdiction will not dependant onthe presence of rights in the country where court seized, also there is no exclusivejurisdiction in copyright infringement cases; second, making a distinction betweenjurisdiction and choice of law, that is to say, the “root copy” approach used in USpractice is not appropriate; third, in special jurisdiction rules, every proposal addressesthe questions of damages through jurisdictional limitation, besides, every proposalsets exception for online copyright infringement, and adopt “direct” criterion fordistance infringement, the effect of these rules is almost the same. However, all of theproposals except CLIP Principles hold that dichotomy in tort jurisdiction also suitablefor copyright infringement. In contrast, CLIP Principles only set aside the principle ofterritoriality in internet circumstances.The last part is the Conclusion. this dissertation advances that the differences on theinternational jurisdiction in copyright infringement cases is not as much as imaged,for the reason of the consensus on general jurisdiction, exclusive jurisdiction andeven the subject matter jurisdiction in the US. The last issue is how to deal withspecial jurisdiction, and the analysis in this dissertation indicates that when selectingthe proper jurisdiction rules for copyright infringement cases, the principle ofterritoriality in copyright should prevails. However, in internet cases, there shall besome adaptations to meet the demand of informational society.