One Is Not Enough, How Many Is Too Many? How Many Countries’ Copyright Laws Should and Actually Do Apply to Copyright Infringements on the Internet? (Guest Blog Post)
By now, activities on the internet should have generated a very large number of cases in which copyright owners claimed simultaneous infringements of their copyrights in multiple countries – claims based on the copyright laws of each of those countries. After all, absent geoblocking of content in certain jurisdictions, internet users have access to content worldwide; if the content infringes some copyright owner’s copyright, the content potentially infringes that copyright everywhere – or at least in a large number of countries.
Internet activities do produce a great number of enforcement actions; court filings and DMCA notifications in the United States (and similar mechanisms in other countries) show vigorous enforcement efforts by copyright owners. Many of these actions target infringers acting in foreign countries (see, for example, Eric Goldman’s posts here and here about such actions). But as Professor Andrew F. Christie of Melbourne Law School observed when he presented his study at the WIPO-ILA Seminar on January 16, 2015, there has been no dramatic surge in cross-border copyright cases that claim simultaneous infringements under multiple countries’ copyright laws. The sample of cases that he studied suggests that there are very few cross-border copyright enforcement cases concerning internet activities that involve multiple countries’ laws and raise associated choice-of-law issues.
The sparse number of online infringement cases with claims under multiple countries’ laws might not be surprising to practitioners familiar with the practical obstacles of cross-border litigation. In my forthcoming article, I identify some of the hurdles that prevent copyright owners from claiming simultaneous infringements under the copyright laws of multiple countries.
The elimination of these litigation hurdles in cross-border copyright enforcement is one of the goals of several academic projects that seek to create choice-of-law provisions to simplify copyright enforcement and allow copyright owners to enforce their rights in multiple countries simultaneously, and in a single venue. Typical proposals for such simplifications call for the application of a single country’s law (e.g., the law of the country with close connections to the dispute or the closest connections with the infringement) to the infringing activity and the infringing activity’s global effects.
The proposals have some problems (one problem is the shifting of the burden of proof onto the infringer to prove the negative – non-infringement – for selected jurisdictions), but the proposals should be commended for their attempt to address the inefficiencies inherent in the enforcement of online copyright infringements. Nevertheless, cross-border online copyright enforcement inefficiencies do have some positive effects that might be worth preserving, and these effects enable law-abiding internet actors to predict with some accuracy which countries’ copyright laws might apply to their activities: usually, the law is either the law of the country of the copyright owner’s domicile or the law of the country of the infringer’s domicile. The limited number of cases in which copyright owners claim infringements under multiple countries’ copyright laws, combined with the fact that users enjoy a certain comfort level about which copyright laws will probably apply to their conduct, might explain why countries haven’t made simplifying cross-border copyright litigation a priority.