A new copyright order: why national courts should create global norms.

• Author: Dinwoodie, Graeme B.

INTRODUCTION

A pervasive sentiment expressed by copyright scholars and by policymakers in the field is the need for international solutions to figure prominently in the reform and evolution of present law.(1) The need to develop international solutions, and hence to incorporate global values and policies in the lawmaking process, is scarcely unique to copyright law. But the effect of digital technology upon the creation, delivery, and use of copyrighted works has made such internationalization appear more urgent in copyright than in other areas of law. Indeed, it is a truism that contemporary problems in copyright law demand international solutions.

But what does it mean to develop international solutions, and how is such internationalization to be achieved? On this point, there is less consensus and often too little analysis. For example, a recent report by the National Research Council on the challenges raised by digital networks, The Digital Dilemma: Intellectual Property in the Information Age, notes the unquestioned need to address the most pressing issues in copyright law in a worldwide context, but then proceeds to perform a purely domestic analysis of those issues.(2) This token acknowledgment of the importance of the international dimension, and the difficulties that it presents, is not unusual; because the basic proposition is largely unchallenged, there often appears little effort to understand its precise significance. "Internationalization" is treated as a given, without considering what it means.

In this Article, I explore the different means by which international copyright solutions are being, and should be, developed. My conclusions flow in large part from analysis of three other truisms of contemporary copyright thought discussed in Part I. First, copyright law must accommodate and respond to technological developments; second, copyright law is an essential instrument of national cultural and information policy;(3) and, third, copyright law affects an ever larger and more diverse set of societal interests.(4) These three considerations require in turn that copyright lawmaking be receptive to dynamic, prospective adaptation, that its results permit some room for national variation, and that it accommodate pluralistic perspectives.

I conclude in Part II that although classical public international copyright lawmaking(5) affords great latitude for national heterogeneity, and does not inherently or affirmatively exclude diverse perspectives, it fails adequately to reflect the first of these concerns. As a result of its backward-looking character, public international lawmaking adopts a codifying rather than a dynamic character. On one level, I do not find this troubling: the caution inherent in the classical model arises in part out of a commendable concern for national autonomy and international diversity, and such caution will be even more important if public international lawmaking truly takes into account the contemporary need for accommodating a greater variety of perspectives. Thus, I accept that the proper role for public international lawmaking is to reflect a growing consensus among nation-states. Rather, the disposition of classical public international copyright law merely highlights the inability of that form of lawmaking to serve as the sole means of pursuing internationalist goals while accommodating other competing considerations.

But the classical model, as I explain in Part II of this Article, no longer prevails unchallenged. The 1990s ushered in a new era of public international copyright lawmaking. Under the new model, relationships among national, regional, and international institutions are consciously more fluid; the pressures to reach (particular forms of) international agreement are strategically heightened by frenetic lawmaking activity in an increased range of institutions; and effective procedures for enforcing international standards have been put in place, thus transforming copyright law into a justiciable body of law. As Part II discusses, the institutional mechanisms of this new model may appear to supply--and some policymakers may wish them to supply--the prospective dynamism missing from the classical model.

The dispute settlement system(6) of the World Trade Organization ("WTO"),(7) within which the substantive public international obligations imposed by the Agreement on Trade Related Aspects of Intellectual Property ("the TRIPS Agreement")(8) were subsumed, possesses the most potential in this regard. I argue, however, that an aggressive use of WTO dispute settlement proceedings, or more importantly the adoption of an activist interpretive philosophy by panels(9) that are convened under WTO auspices, would be counter-productive. It might supply the dynamism missing from the classical model, but it would do so at the cost of other relevant concerns, namely national diversity and pluralistic perspective. Thus, although TRIPS has had, and the WTO will have, an important role in providing an international dimension to copyright lawmaking, such new public international copyright lawmaking must not be unrestrained.(10)

Instead, I argue in Part III for a broader, more expansive notion of international copyright lawmaking. In particular, I stress that the internationalization of copyright law may take forms other than formal declarations of binding rules of public international law, and suggest that the properly confined role of public international copyright lawmaking should consciously be supplemented by private international copyright lawmaking.(11) By this, I mean that private law dispute settlement mechanisms should play an important role in the internationalization process. Rather than embrace the new public international lawmaking process as the holy grail of copyright internationalization, I seek to accommodate the competing concerns of dynamism, national diversity, and pluralistic perspective by broadening the means by which international norms work to infiltrate domestic copyright law.

Part III of the Article, therefore, explores the ways in which private law mechanisms are, and could be, used to develop international copyright law. First, I consider whether arbitration of copyright disputes possesses the potential to exert influence upon the development of international copyright norms. International commercial arbitration proceedings make frequent reference to a lex mercatoria,(12) emanating from standards of international commerce rather than from any particular national norms, that could, with appropriate adaptation, contribute to the development of international copyright standards. I conclude that the use of cybercontractual arrangements in the supply of copyrighted works makes arbitration based upon ex ante agreement a more likely resource for copyright development than was previously the case because such arrangements create contractual privity between copyright disputants typically not found in the bricks-and-mortar world.

Second, and central to this Article, I seek to enlist national courts in the task of copyright internationalization by sketching a new choice of law methodology for private international copyright disputes. All current approaches to choice of law force courts to fictionalize multinational disputes as implicating purely national norms (the process of "localization"), and thus foreclose the consideration by courts of international norms separate and apart from domestic policy objectives. Each of these approaches requires courts to decide issues raised by such disputes according to a single national law.(13) Instead, I propose that courts should decide international copyright cases not by choosing an applicable law, but by devising an applicable solution. International copyright disputes implicate interests beyond those at stake in purely domestic copyright cases. National courts should thus be free to decide an issue in an international case using different substantive copyright rules that reflect not only a single national law, but rather the values of all interested systems (national and international) that may have a prescriptive claim on the outcome. This approach to choice of law may unleash the generative power of common law adjudication as a means of developing international copyright norms. And it would accommodate the concerns of dynamic flexibility without compromising the values of national diversity or pluralistic perspective in a way that public law-based copyright lawmaking does not.

Before proceeding, one caveat is in order. In this Article, I focus largely on questions of process in copyright law formation.(14) To be sure, those questions cannot be wholly divorced from the substantive aims of copyright law, and the particular substantive rules of copyright law that emerge are not unaffected by the process that gives birth to them. But whether temporary copying should constitute prima facie reproduction, whether browsing should be conceptualized as copying, or whether database protections should include sole-source compulsory licenses--and many other questions raised by global digitization--are topics worthy of separate and sustained analysis. Others are doing that work. For current purposes, I want to explore the process of internationalizing copyright law. That exploration will inevitably impinge upon substantive concerns, and the conclusions that I reach will surely be viewed by others more or less favorably depending upon the extent to which they impede or further particular substantive goals. But this merely highlights the importance of attention to process in and of itself.

1. THE DEMANDS OF COPYRIGHT LAWMAKING IN THE TWENTY-FIRST CENTURY

   Copyright law stands at the junction of powerful pressures that may impose sometimes inconsistent prescriptive demands. Globalization requires that problems be addressed as an international matter. Technology, by significantly altering the means by which...