Probable extraterritorial effects and a public choice democracy perspective.

• Author: Barbosa, Roberto Garza
• Position: International Copyright Law and Litigation: A Mechanism for Improvement

There are several issues that have to be addressed or considered in the process of negotiating the enforcement mechanism. These issues are related to certain consequences the mechanism will produce. There are questions, not only of transnational enforcement, but also of probable recognition of higher copyright protection standards from one country to another. As can be expected, copyright exporting countries like the United States have a more rigorous copyright act than countries that are copyright importers. For instance, severe statutory damages, like those available under the U.S. law, are not present in Latin American countries.

Even if this mechanism has clear rules about jurisdiction and choice of law, courts would probably apply their own domestic law to acts occurring abroad. For example, the law of the United States--a copyright exporter country--would be applied to foreign defendants engaging in activities through the Internet. The place of infringement would tend to be declared as occurring within the United States, and this argument, though reasonable, would ignore the choice of law rules proposed in this mechanism. If this is the case, and the rules of jurisdiction and choice of law of the proposed mechanism do not prevent the generalized application of U.S. law or the law of another exporting copyright country to acts occurring in another Member State, two problems would arise. First, the expansion of copyright protection always brings benefits and costs. The legislature of one country needs to balance these costs and benefits among represented players and voters of the legislative process, otherwise it may face the consequences in the next election. However, if the cost of increasing copyright protection is paid by foreign non-voters, the result could be the unjust raising of copyright protection at the cost of foreigners who are not represented in the legislature. While the harmonization provides some answers, differences among copyright statutes remain. Thus, harmonization is not enough to solve this issue.

The differences are principally related to the term of protection, statutory damages, and the availability of secondary liability under several jurisdictions. There is another proposed convention on intellectual property litigation that was outlined by Professors Rochelle C. Dreyfuss and Jane C. Ginsburg (Dreyfuss & Ginsburg proposal). (255) I bring up this proposed convention in order to explain how it deals with the issues discussed in this section. While the proposed mechanism is not going to deal with these problems in the same way, it is illustrative to analyze how other proposals deal with these problems. Unlike the proposed mechanism, which is designed only for copyright infringement litigation, the Dreyfuss & Ginsburg proposal deals with all intellectual property litigation, including patent and trademark litigation as well as other non-infringement actions. (256) It is not similar to this proposed mechanism because it has different rules and a different background. It is based on the failed Hague Draft Convention; however, it includes several specific provisions for intellectual property matters, and surprisingly, unlike the Hague Draft Convention, it provides for the doctrine of forum non conveniens. (257) It does, however, use the same approach of the failed Hague Draft Convention regarding preliminary injunctions. (258)

Unlike my proposed mechanism, the Dreyfuss & Ginsburg proposal has a specific ground for non-recognition for cases where the choice of law is arbitrary or unreasonable. As already mentioned, the mechanism this Article proposes deals with this problem under other more general grounds for non-recognition applicable to judgments that are against the public policy of the place where recognition is sought. As mentioned before, if the judgment was based on a choice of law that was unreasonable or arbitrary, it could be against the public policy of the place whose enforcement is sought.

It is interesting, however, to note that for the Dreyfuss & Ginsburg proposal, a reasonable choice of law for Internet infringement cases is the law of the place where the operator has its residence or principal place of business, or if the infringing materials are not found on a Web site, like peer-to-peer technology, the reasonable applicable law is the law of the principal place of business or residence of the person that initiated communications. Furthermore, in the latter case, the proposed convention refers to the place where peer-to-peer communication is initiated and not the place where the distributor of peer-to-peer software has its residence. As an exception to this general rule, it also provides for the law of the place that has the most significant relationship with the controversy, for example, the law of the principal target of the infringing activities. If the infringing activities target different countries, the laws of those different countries are going to be applied to the portion of infringing activities conducted in each specific country.

Those specific provisions regarding choice of law and remedies...