The text below represents commentary, not legal advice.
Return to: Critical
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Edward Geller, attorney.
Published in the Duke Journal of Comparative and
International Law, vol. 9 (1998), p. 69, and in the Vanderbilt Journal of Transnational Law, vol. 31 (1998), p. 553,
and, along with a Chinese translation of the paper on which the article was
based, in Intellectual Property Studies,
no. 5 (1998), p. 1, by the CASS IP Center. Copyright © Paul Edward Geller 1998.
This article is based on a paper delivered at the program "Public-Private
Initiatives After TRIPs," held by the Center for Global Information
Technologies, Duke University School of Law, in Brussels on July 16-19, 1997.
For their comments on prior drafts, the author thanks Norman Alterman, Lorin
Brennan, Ysolde Gendreau, Thomas Heide, Bernt Hugenholtz, Ronald Laurie, Ejan
Mackaay, David Post, J.H. Reichman, Pamela Samuelson, and Alain Strowel.
From
Patchwork to Network:
Strategies for International
Intellectual Property in Flux
Paul Edward Geller
INTRODUCTION
Laws of intellectual property define what is bought and sold on media and
technology markets, notably works, trademarks, and inventions. Laws and
treaties have traditionally been made and enforced by nation-states operating
in a patchwork of territories. Now, the media and technology marketplace is
being globalized in digital networks. The law is only beginning to respond to
this change.(1)
To analyze this process in the field of intellectual property, this Article
will consider the following questions: First, how is the patchwork of national
laws lagging behind new networks in this field? Second, how does the
international regime of intellectual property leave these laws in conflicts
relative to the emerging global marketplace? Third, what strategies are
available to private parties for dealing with legal uncertainties that are
emerging in the short term? Lastly, how can these strategies be coordinated in
the long term?
I. THE SHIFT FROM PATCHWORK TO NETWORK
How do the patchwork and network models apply in the field of intellectual
property? A patchwork consists of differentiated units, each separated from the
other by clear-cut borders in space. A network consists of individuals at
terminals, each linked and interactively communicating with others across
space, while networks themselves tend to interconnect with each other globally.(2) Until recently, national laws of intellectual property,
along with corresponding markets, fit within the patchwork model. Now, media
technologies are shifting the marketplace to the network model.
Laws of intellectual property have formed a patchwork country by country.
Treaties in the field set out minimum rights, but in flexible terms so that
each right may be implemented with more or less discretion.(3)
Otherwise, these treaties, starting with the Berne and Paris Conventions,
provide for national treatment, requiring each member-state to protect foreign
treaty claimants like domestic claimants. Thus, while differing from country to
country, much the same legal rules have governed most competitors in media and
technology markets within each set of borders.(4)
Industries have tended to group within such borders: for example, publishers
have gravitated to centers such as Paris, London, and New York. Hard copies and
products have been marketed outward from such centers within national
territories.
Now, however, markets are being globally networked. Computers are releasing
creation and production from the constraints of geographical space. For
example, they allow writers to ready text for publishing, composers to
synthesize music, and designers to shape products, all at their desk tops.
Telecommunication media, like the fax and the Internet, enable teams of
creators from the four corners of the earth to collaborate instantaneously
across cyberspace.(5) The World Wide Web opens up new
interactive channels between creators and producers, on the one hand, and mass and
specialized markets, on the other. More generally, the communication of media
productions, marketing symbols, and technologies is being decentralized and
enriched between points of input and end-use.(6)
II. HOW THE SHIFT LEAVES LAWS IN
CONFLICTS
Patchwork law lags behind the networked marketplace. It suffices to focus on
one basic problem to dramatize this lag: What law or laws of intellectual
property should a court choose to govern cross-border infringement? In the
patchwork, enforcement country by country usually stopped illicit manufacturing
or pirate presses, as well as commerce in infringing products or hard copies.
Upon suit in any one country, the court there simply applied its own law to
such products or copies within its jurisdiction. But what if, today, a court
applied the law of any one country to network transactions crossing borders
into other countries?(7) That law could provide too much or
too little protection, and that country could become either a choke point or a
pirate haven.
For example, what law should govern transmitting raw data from a European
database via the Internet to the United States or China? The European Union has
now directed its member-states to institute sui generis property rights
in raw data compiled into databases.(8) Suppose that a
court considers unauthorized transmissions of raw data from Europe as
completely localized inside Europe, effectively at the point of transmission.
Then a European law granting property rights in the data might be chosen, at
the source, to apply to the transmissions worldwide and, accordingly, to those
received in the United States and China. That choice of law might well hinder,
indeed choke off, data flow at points within the global network that policies
in these countries, among others, would still leave open.(9)
Suppose, in turn, that a court localizes the infringing acts in the United
States or China, where data is received but not strongly protected. Then, to
European eyes, pirates may find havens in these countries, from which they
might more or less freely retransmit data.(10)
Such conflicts of laws are potentially quite volatile. The alternative
resolutions just broached in the hypothetical data case parallel differing
approaches to choosing laws to govern the broadcasting of works via satellite
across multiple borders.(11) If suits for illicit satellite
broadcasts were brought in different jurisdictions, the results could vary,
say, if one court applied the law of the transmitting country and another the
laws of receiving countries.(12) Furthermore, not only do
laws of intellectual property vary from country to country, but so do laws
governing the ownership and transfer of such property, compounding the chances
that different laws might be dispositive of similar cases of transfers of
worldwide rights.(13) Finally, different courts follow
different methods of resolving conflicts of laws: for example, European courts
tend to apply categorical rules often codified in statutes and treaties, while
North American courts may more easily take account of public policies in
choosing laws.(14) Special conflicts analyses have been
proposed to reduce such uncertainties in network cases, but they do not
necessarily compel choosing the same laws in similar cases.(15)
To respond to this problem, among others, the goal of a supranational code has
been contemplated in the field of intellectual property for over a century.(16) Such a code would impose sufficiently uniform law
worldwide that courts would not have to choose between conflicting laws on
critical issues that typically arise in this field of law. The Berne and Paris
Conventions have gradually approached this goal by dictating minimum rights
that may be implemented with more or less variation in each member-state.(17) Most recently, the Agreement on Trade-Related Aspects of
Intellectual Property Rights (TRIPs Agreement) represents new progress,
treating most branches of intellectual property in one text applicable to most
countries.(18) However, the TRIPs Agreement is not yet a
systematic code, but it rather incorporates and supplements Berne and Paris
provisions piece-meal.(19) The TRIPs Agreement thus still
leaves patchwork law lagging behind an increasingly networked marketplace.
III. TRANSITIONAL STRATEGIES FOR PRIVATE
PARTIES
Hence the urgent question: What strategic options are available during this
shift from patchwork to network? Distinguish the following levels of
strategies: first, self-help; second, systems; and third, enforcement. In the
transition from patchwork law, analysis at each of these levels takes place
against the receding horizon of reliable network law. The following strategies
are being outlined precisely to cope with this admittedly frustrating, interim
perspective.
A. Self-Help Strategies
The first level is that of self-help strategies. Most simply, landlords build fences
around their lands to prevent trespass, or herders brand cattle or sheep to
keep rustling in check and, perhaps more importantly, to keep their livestock
from being mixed up into their neighbors' herds on the way to market. Creators,
innovators, and producers can use self-help measures, such as digital fences or
brands, to manage what they originate, as well as to keep out or to help catch
infringers.(20)
Media productions, marketing symbols, technologies, and data, once digitized,
can be copied perfectly and transmitted repeatedly worldwide. In copyright
circles there is a slogan regarding self-help measures against the resulting
threat of digital piracy: the answer to the machine is in the machine.(21) That is, increasingly, new systems are being developed
to fence in and to brand packets of digitized information and, more broadly, to
manage its exploitation. Since the state of the art is rapidly changing, it
would be futile to inquire into all possible strategies at this level.(22) Consider, instead, one oversimplified, hypothetical
example.
Suppose that an epic feature film is produced at the cost of fifty-million
dollars. Commonly, more money is charged for access to such films upon initial
release and less as the market is saturated. It is then crucial to release the
film subject to self-help measures that keep it from being uncontrollably
retransmitted throughout the marketplace. The film can be encrypted, and an
initial signal sent to end-users' terminals to trigger feedback to verify that
these terminals would only decode the film for viewing upon compliance with
programmed conditions.(23) At the threshold, end-users could
only access the film in decoded form on the condition that their credit-card
accounts be debited for viewing the film. At the lowest price, the terminal
would destroy all trace of the film after displaying it once; at higher prices,
the terminal would allow specified, subsequent uses. An interface would
articulate such options among which the end-user could choose.(24)
The mere fact that claimants resort to such fences does not imply any right to
stop others from jumping over them. Such rights turn on whether or not the law
deems what lies on the other side of any given fence to be protected, for
example, as property. It is true that different courts have invoked diverse
laws as the bases for remedies against commercial attempts to circumvent
self-help measures.(25) Nonetheless, even with new treaty
provisions on point, it remains uncertain how far the law should allow such
actions, in particular against providers of devices that might facilitate
circumvention of self-help measures but that are not exclusively designed for
that purpose.(26)
B. System Strategies
The second level is that of system strategies. Self-help measures are nothing
more than elements in larger system strategies. Return to the hypothetical
example of the fifty-million dollar film.(27) To encrypt,
deliver, and get paid for this film in the networked marketplace, its producer
needs computer-driven systems. Such copyright-management systems must fit into
some still-larger system, now effectively the Internet, that links
rights-holders, credit-card accounts, and end-users. Indeed, diverse hardware
and software systems, themselves programmed to run according to complex sets of
rules, converge to form the networked marketplace.(28) Because such systems tend to become entangled with legal
rules, they offer strategic options. Consider system strategies in a
multidimensional analysis. The following distinctions can be drawn:
1. Program and legal rules. Computer-program rules can be distinguished from legal
rules, including those which contractually bind parties. In the example of the
film exploited thanks to computerized systems, program rules control its actual
encryption and delivery on demand and, thus, end-users' access to it. Legal
rules come into play to determine whether or not end-users contractually accept
such rules as are programmed into these systems.
2. Service and transactional rules. Rules will vary in the extent to which they apply
either throughout a given service or transaction by transaction. In the case of
films delivered and enjoyed on demand and on-line, some rules may generally
apply to all films delivered by a specific service, such as those governing
participation or modes of payment. Others may change from particular
transaction to transaction, such as the actual prices for access or re-access
to the film. Of course, all such rules would be tailored according to the kind
of works or data to which the public gains access.
3. Surface and background rules. As a matter of fact, end-users differ in their
knowledge of program and legal rules in any given system. To analyze their
varying awareness, we shall treat as surface rules those which are relatively
obvious to end-users and as background rules those which remain obscure to
them. In the case of the hypothetical film, most end-users would understand the
surface program rule that entering an option on a menu, or clicking on an icon
on screen, allows them to see the film, as they would the surface legal rule
that they then owe money on their credit cards for such access. By contrast,
program rules controlling encryption remain background rules for most users, as
do the full set of legal rules governing the credit-card system.
These distinctions can cut across each other to varying effects. Program rules
drive copyright-management systems, such as those controlling access to the
hypothetical film.(29) Depending on applicable legal
rules, a contract may arise when an end-user subscribes to an on-line service
generally or pays for access to a media production like the film in a specific
transaction. End-users can be put on notice of surface rules by user-interfaces
that will appeal to the mass market to the extent that they are simple and easy
to operate, but it might be necessary to resort to interfaces that articulate
more complex contractual rules, especially in moving to more specialized,
so-called niche markets.(30) For example, a developer of
specialized software, in marketing to clients via the Internet, would do well
to settle such terms as specifications, upkeep after initial delivery, and
payment schedules. To the extent that market segments, such as mass and niche
markets, are themselves networked, rules in one segment might impact on others.
This possibility now troubles legislative initiatives concerning electronic
commerce.(31)
That said, it would oversimplify matters to suggest that simple assent suffices
to validate such contractual arrangements. It is already quite common,
especially in technologically complex settings, for end-users to agree to standard-form
contracts. Whether parties should be legally bound by contractual terms at the
surface of such transactions will depend on overriding laws and policies.(32) Of course, standardization might facilitate network
transactions, but it can arise for a host of other, possibly contingent reasons
as well, among them the anticompetitive practices of parties in dominant market
positions.(33) In any event, legal principles and public
policies at work in various jurisdictions and fields of law, ranging from
intellectual property to freedom of expression and antitrust, may also prove
relevant to validating, or invalidating, contract terms.(34)
Courts may apply such principles or policies with erratic effects from case to
case, or statutory instruments may codify their effects by enumerating
categorically unenforceable contract terms.(35)
There is the hope, or fear, that intellectual property will be eclipsed by
technological and contractual systems of control. Accordingly, some
cyber-prophets have announced the death of intellectual property,(36) but news of this death might be premature. To start,
older media are never fully swallowed up by newer media: just as live public
performances are still attended, hard copies will continue to be read.(37) At a minimum, intellectual property will continue to
play default roles that it has already developed with regard to older media,
even as these feed newer media. Further, intellectual property would only
become superfluous within the networked marketplace if all productions and data
on-line were fully fenced in, both technologically and contractually.(38) Not only are such fences not necessarily without
technical glitches or gaps, but nothing obligates right-holders to use them to
control access to materials that they input into networks.
For example, a poet, looking for sympathetic readers, might post her texts on
her web-site and, at the same time, indicate that certain poems may be
gratuitously retransmitted as long as they are attributed to her and not
changed.(39) Suppose that a popular singer adapts one of
these poems into the lyrics of a song exploited at great profit: the poet may
assert her copyright or author's rights to obtain royalties or respect for her
authorship.(40) Similarly, trademark and patent or hybrid
rights provide lines of defense against network exploitation both of marketing
symbols and of technological processes and data.(41)
C. Enforcement Strategies
After self-help and system strategies, the next level is that of enforcement.
The law ultimately controls behavior by virtue of threats of enforcement. Most
notably, pirates face civil and criminal remedies, and businesses negotiate
contracts with an eye toward their relative force in arbitration or court.
Civil litigation between private parties has the advantage of highlighting
specific strategic options regarding enforcement in the transition from
patchwork to network.(42) These include selecting a court,
putting pressure on points where systems converge, and attacking and defending
at these points.
Think again of the hypothetical fifty-million dollar film.(43)
Suppose that a pirate cracks the encryption system and is retransmitting the
film for profit across borders. The rights-holder then faces an initial
strategic question: In what court or courts to bring suit against the pirate?
Indeed, confronted by conflicts of laws, European and North American courts may
well choose laws differently.(44) They may also choose
whether to exercise jurisdiction and extend the territorial scope of their
orders according to quite different considerations. In Europe, the Brussels and
Lugano Conventions may come into play, while courts in the United States look
both to common-law doctrines such as forum non conveniens and to special
concerns regarding federal jurisdiction.(45)
The next pair of questions are interrelated: What laws to choose? And what
preliminary orders to request from the court?(46) The film
pirate has to rely on converging delivery and credit-card systems, as does the
film provider, to market the film electronically and to get paid. One strategic
option is to attack at this point of convergence, say, by asking the court to
so choose laws that it will order the delivery-service provider to reprogram
its system to block access to the pirated work or the credit-card system to
block payments to the pirate pending trial.(47) Distinct
issues arise regarding remedies here: On the one hand, may content providers
obtain court orders compelling service providers to reprogram systems to avoid
infringement?(48) On the other hand, may content providers
make service providers liable to pay damages for infringement?(49)
Defenses are developing on this point: services that ignore content are proving
rather resistant to damage suits.(50)
This legal environment is like a dense and tangled jungle. Content providers
can here spring surprise litigation attacks from forums that they have shopped,
while service providers risk being caught unawares on the defensive or in
cross-fire between right-holders and pirates.(51)
Depending on their varying interests, parties subject to such attacks may ask
themselves whether they are better off conforming their conduct to the laws
effective within the most protective jurisdictions in the global network or
within its most profitable market segments or, in the alternative, whether they
can get away with taking advantage of the lack of protective laws in data
havens.(52) Stray facts can also bear on survival: for
example, damages in one small country might be tolerable, but not on a
continental scale, or it might be easy to reprogram a system to comply with an
order in one case, but difficult in another.
In any event, as the costs and dangers of fighting increase in this worldwide
jungle of patchwork law, its denizens might start to dream of an orderly garden
of reliable network law.(53) Such law might include
procedures to handle claims of cross-border infringement, to block access or
payment in easily confirmed cases of piracy, and to refer difficult cases to
arbitration and, ultimately, to the courts.(54) These
utopian thoughts bring us to the task of coordinating the self-seeking
strategies of private parties in the light of global public policies.
IV. THE LARGER INTERNATIONAL PERSPECTIVE
Patchwork law continues to serve as the default structure within which network
law will evolve in the foreseeable future. In the interstices of this patchwork
structure, national laws come into play with increasing risks of conflicts in
the globally networked marketplace.(55) In the systems
converging to form this marketplace, computer-program rules are proliferating,
but it remains to be seen how these may best feed into legal rules.(56) The following criteria are provisionally ventured to help
coordinate the strategies previously proposed to cope with this transition from
patchwork to network:
1. Avoid falling back into the default position
of patchwork law. Nation-states typically
legislate to solve locally defined problems. They thus tend to overload
existing legal structures with endemically differentiated national laws. The
first criterion is then merely cautionary, directing analysis away from old
sources of such patchwork law and toward more suitable sources of network law.
2. Organize
private-public initiatives to elaborate transnational network law. Diverse
parties, ranging from private individuals and enterprises to public entities,
including nation-states, build and participate in network systems. Along with
end-users, ultimately the public at large, these parties all have interests in
the orderly and reliable operation of their internationally converging systems.
The second criterion favors initiatives that bring such parties together to
elaborate transnational law for global networks.
3. Formulate
such law compatibly with diverse cultures. In the patchwork, diverging
legal conceptions can cohabit on the opposite sides of borders. In digital
networks, such divergences risk being compounded as contractual and other legal
rules proliferate from system to system. The third criterion requires that,
rather than being cast in a Babel of cyber-jargons, basic principles of network
law make sense across cultural lines.
The domain-name crisis illustrates these criteria. The same trademark may be
used by different parties in different places or on different goods. Each
domain name is used on the World Wide Web across territorial lines as a unique
address. The first criterion, just listed above, was only partially satisfied
in the initial cases involving domain names. In these cases, trademark owners
invoked patchwork national laws to challenge domain names that were similar to
their marks.(57) In line with the second criterion,
initiatives are now seeking to increase the variety of higher-level domain
names available internationally. At the same time, private and public parties,
including the World Intellectual Property Organization (WIPO), are establishing
procedures for resolving disputes concerning such names.(58)
Now, domain names often serve as trade names, which the Paris Convention
protects along with trademarks, but without prioritizing all these symbols.(59) To satisfy the third criterion, a rule governing
relations between such symbols needs to be formulated compatibly with laws
worldwide.
Treaty provisions may well remain the best instruments for harmonizing the relations
between such symbols from country to country.(60) Indeed,
in the field of intellectual property generally, international treaties, such
as the Berne and Paris Conventions, have proved effective in forestalling many,
though far from all, of the conflicts to which patchwork law is susceptible.
Admittedly, the new, transnational initiatives contemplated here will not be
without their own disadvantages and difficulties.(61)
Hence the question: How to build on the strengths of the time-tested
Berne-Paris regime in pursuing initiatives to elaborate network law? To begin
inquiry, it will prove useful to apply the three criteria for such initiatives
in another branch of intellectual property, namely copyright.
A. Beyond the Default Position
The first criterion of avoiding patchwork law will encounter resistances in the
area of copyright. Law-making is here pushed and pulled by a perplexing variety
of interest groups and passions. For example, authors haggle with producers,
but both groups join in opposing users as diverse as broadcasters and libraries
and, most recently, end-users on the global network. Further, copyright
provincialisms, arising out of cultural tensions, prompt groups to favor local
laws, to demonize unfamiliar foreign laws, and to attempt transplanting their
notions worldwide.(62)
Such groups clashed at the Diplomatic Conference which WIPO held at the end of
1996. The Conference then compromised on controversial points in drafting the
WIPO treaties. So-called agreed statements, along with these treaties
themselves, now leave the rights of reproduction and communication to the
public open-ended and contemplate new exceptions in digital media.(63) Unfortunately, the distinctions between such rights
specifically, as well as between rights and exceptions generally, diverge
systematically at the deepest levels from one copyright law to another.(64) For example, France and Germany formulate all rights
broadly in terms of reproduction and communication, while drawing exceptions in
narrowly construed statutory terms.(65) By contrast, the
United States enumerates these rights with others in a closed list and exempts
fair use in elastic, judicially crafted terms.(66)
The new WIPO Copyright Treaty and Performances and Phonograms Treaty have not
reconciled these very different approaches to rights and exceptions. Both
treaties employ sufficiently vague language on point to allow member-states
some room to vary rights and exceptions according to local predilections.(67) Most critically, the right which these treaties
specifically articulate for network systems, the right to control communication
to the public, is not coupled with any definition of the private sphere that
would limit its scope. Furthermore, under the so-called umbrella reading of
this right, each country may implement it with rights that are either broadly
conceptualized according to the Continental European approach or narrowly
enumerated according to the Anglo-American approach, and varying overlaps with
the reproduction right are possible.(68) Under the new
WIPO Treaties, nation-states may thus continue to make patchwork law in this
branch of intellectual property. What initiatives might prepare the way for
network law?
B. Transnational Initiatives
The second criterion of organizing private-public initiatives addresses needs
specific to global networks. The present analysis has already broached some of
the problems that such initiatives could help to solve in these new media
environments. For example, one type of initiative could standardize
copyright-management systems, both technologically and contractually, to assure
their seamless use across borders.(69) As another example,
consider initiatives to establish dispute-settlement procedures that, coupled
with new judicial procedures, would expedite handling claims of cross-border
infringement.(70)
Such private-public initiatives would not fit neatly within the traditional
distinctions of international law. Private parties have usually exercised
decentralized powers of choice in the marketplace, while public authorities in
centralized nation-states have ratified and limited these powers as rights
under patchwork law. The private international laws of such states have then
normally accorded most rights of nationals to foreign parties,(71)
while public international law in treaties such as the Berne and Paris
Conventions has specified state obligations to assure such private rights in
the field of intellectual property.(72) However, mutant
rule-making creatures are now evolving in the globally networked marketplace
that no longer fit comfortably on one side or the other of such traditional
distinctions between private rights and public laws and treaties.(73) In particular, ostensibly private enterprises can
sometimes impose rules in their network systems, as if they were public
authorities, for example, by excluding rebellious or misbehaving parties from
such systems.(74) Furthermore, private-public initiatives
have been developing the Internet, and the enterprises and agencies investing
in these initiatives have serious interests in assuring the orderly operation
of this global system.(75)
The patchwork of jurisdictional competencies of nation-states does not fully
catch these new rule-making creatures within its grasp. For example, it remains
unclear how national courts may oversee international domain-name registries or
review arbitral decisions settling disputes with regard to such names.(76) More generally, diverse pressure groups can be expected
to prompt national legislatures to elaborate public laws to regulate network
commerce that affects local consumers or business interests. Such schemes will
overlay the patchwork of laws recognizing private rights, such as those
sounding in intellectual property, that already tend to enter into conflicts in
applying to cross-border transactions.(77) Thus global
networks risk hyper-regulation as national laws, as well as international
treaties, impact in unexpected ways with such new program and contractual rules
as network enterprises and agencies propose to participants in their systems.
Some commentators place their hopes in transnational governance regimes that
would at least engage traditional law-makers and these new rule-making
creatures in harmonizing dialectics with each other.(78)
Such hopes, it will now be suggested, can be bolstered by looking to common
threads in diverse legal cultures.
C. Multicultural Compatibility
The third criterion of compatibility also corresponds to network conditions. In
the mass market, user-interfaces are more likely to become standards to the
extent that they are user-friendly.(79) These same
interfaces will convey to end-users the contractual terms with which network
enterprises propose to bind them. The fact that the shortest, simplest
interfaces will tend to become the most widespread raises problems of
validating them as short-form standard contracts.(80) In
the global marketplace, it is submitted, such problems are best solved
compatibly with legal cultures worldwide.
It has been contended that the invisible hand of the marketplace will favor
network rules that more and more end-users accept in participating in systems
that incorporate these rules.(81) At a minimum, this
argument has the merit of pointing out that some network rules may obtain
contractual force by virtue of acceptance throughout a marketplace that
transcends territorial borders. Nonetheless, it is unclear to what extent
end-users will knowingly assent to ostensibly contractual choices on
user-friendly interfaces, for example, when entering options in short menus or
clicking on simple icons that do not fully spell out underlying terms and
conditions.(82) It also remains questionable under what
conditions end-users may, in all legal cultures, contractually waive basic
rights of privacy and freedom of expression and, accordingly, of creatively
reworking copyright materials.(83)
Some of these difficulties can be forestalled by comparative legal analysis.
Research can seek out principles common to most or all legal cultures in the
light of which standard user-interface terms might be made interoperable
worldwide.(84) The drafters of the Berne and Paris
Conventions, in elaborating minimum rights of intellectual property compatible
with different legal cultures, have begun to work out a kind of lingua franca
for the field.(85) Furthermore, judges ideally
characterize the facts of cross-border cases in terms "referable
indifferently to foreign as well as to domestic substantive law" before
making any choice between conflicting laws.(86) Such terms
might also provide the keys to formulating contract-rule modules that
user-interfaces can incorporate compatibly with diverse laws.
V. CONCLUSION
Digital media have unleashed deep-running changes in the international regime
of intellectual property. The patchwork of nation-states can no longer respond,
with its purely territorial laws, to network imperatives of interconnectivity.
Just as paper and print once undermined the feudal order, these media changes
are dislocating modern allocations of law-making power.(87)
Inevitably, hard cases will arise at myriad interfaces, for example, between
freely creative individuals and technologically fenced-in data, masses of
end-users and elite system-operators, and content and service providers.
Short-term strategies, useful to private parties in such cases, have here
served as starting points for elaborating longer-term, law-making methodologies.
1. See, e.g., Paul Edward Geller, New
Dynamics in International Copyright, 16 Colum.-VLA J.L. & Arts 461
(1992) (correlating changes in international copyright with changes in the
media).
2. See generally W. Russell Neuman, The
Future of the Mass Audience 48-74 passim (1991) (emphasizing the
proliferating interconnectivity of digital networks). See, e.g.,
National Research Council, The Unpredictable Certainty 11-22 (1996) (analyzing
relations of the Internet to other networks).
3. See Berne Convention for the
Protection of Literary and Artistic Works, Sept. 9, 1886, as last revised at
Paris, July 24, 1971, arts. 6bis-16, 828 U.N.T.S. 221 [hereinafter Berne
Convention]; Paris Convention for the Protection of Industrial Property, March
20, 1883, as last revised at Stockholm, July 14, 1967, arts. 4-11 passim,
21 U.S.T. 1583, 828 U.N.T.S. 305 [hereinafter Paris Convention].
4. Berne Convention, supra note 3, art.
5; Paris Convention, supra note 3, arts. 2-3. Cf. Hanns Ullrich, Technology
Protection According to TRIPs: Principles and Problems, in From GATT
to TRIPs 357, 366-369 (Friedrich-Karl Beier & Gerhard Schricker
eds., 1996) (noting that national treatment leaves countries free to fashion
laws of intellectual property pursuant to national policies). On rare points,
countries do derogate from national treatment, lapsing into material
reciprocity, but they then only further complicate the patchwork. See Paul
Edward Geller, Intellectual Property in the Global Marketplace: Impact of
TRIPS Dispute Settlements?, 29 Int'l Law. 99, 100-01 (1995) [hereinafter
Geller, TRIPS Dispute Settlements?].
5. See, e.g., Peggy M. Irish &
Randall H. Trigg, Supporting Collaboration in Hypermedia: Issues and
Experiences, in The Society of Text: Hypertext, Hypermedia, and the
Social Construction of Information 90 (Edward Barrett ed., 1989)
(analyzing existing technologies); Carl Tollander, Collaborative Engines for
Multiparticipant Cyberspaces, in Cyberspace: First Steps 303 (Michael
Benedikt ed., 1992) (anticipating future systems).
6. See
Dan L. Burk, Patents in Cyberspace: Territoriality and Infringement on
Global Computer Networks, 68 Tulane L. Rev. 1, 7-24 passim, 38-46
(1993); Paul Goldstein, Copyright's Highway: The Law and Lore of Copyright
from Gutenberg to the Celestial Jukebox 197-201, 234-36 (1994)
[hereinafter Goldstein, Copyright's Highway]; Brian Kahin, The Internet
Business and Policy Landscape, 1997 Ann. Rev. Inst. for Info. Stud. 47,
50-56.
7. Compare Burk, supra note 6,
at 48-67 (analyzing issues raised by cross-border patent infringement), and
Curtis A. Bradley, Territorial Intellectual Property Rights in an Age of
Globalism, 37 Va. J. Int'l L. 505 (1997) (critiquing extraterritorial application
of laws, notably with regard to trademark infringement), with Paul
Edward Geller, International Copyright: An Introduction § 3[1][b][ii]
[hereinafter Geller, International Copyright], in 1 International
Copyright Law and Practice, INT-46 to INT-50 (Paul Edward Geller &
Melville B. Nimmer eds., 1997) [hereinafter Int'l Copyright Law & Practice]
(proposing criteria for localizing cross-border copyright-infringing acts).
8. Council Directive 96/9/EC of 11 March 1996
on the legal protection of databases, arts. 7-11, 1996 O.J. (L 077) 20, 23-27.
9. See generally J.H. Reichman &
Pamela Samuelson, Intellectual Property Rights in Data?, 50 Vand. L.
Rev. 51 (1997) (critiquing E.C. directive along with other initiatives and
presenting policy arguments against granting property rights in raw data).
10.
Compare National Basketball Assoc. v. Motorola, Inc., 105 F.3d 841,
848-853 (2d Cir. 1997) (not protecting raw data at issue, but opining that raw
data may be protected against misappropriation as hot news), with
Guangxi Broad. & T.V. Newspaper v. Guangxi Coal Workers' Newspaper, 1996
China L. Rep. 843 (Liuzhou Intermediate People's Court), noted in Guo
Shoukang, China § 2[1][b], in 1 Int'l Copyright Law &
Practice, supra note 7, at CHI-16 (holding it legitimate to reprint
television-program data for the same and next day, but not necessarily for
other uses).
11.
See generally Geller, International Copyright, supra note
7, § 3[1][b][iii] at INT-50 to INT-53 (providing framework of analysis and
citing authorities). Compare Roberto Mastroianni, Diritto
internazionale e diritto d'autore 413-25 (1997) (attempting to reconcile
the alternative approaches to resolving conflicts of laws in cases of both
satellite-relayed broadcasts and on-line dissemination), with Jean-Sylvestre
Bergé, La protection internationale et communautaire du droit d'auteur:
Essai d'une analyse conflictuelle 221-26, 300-01, 394-98 (1996)
(considering that the alternative approaches remain distinct and perhaps
differently applicable to satellite-relay and on-line cases).
12.
Compare Council Directive 93/83/EEC of 27 September 1993 on the
coordination of certain rules concerning copyright and rights related to
copyright applicable to satellite broadcasting and cable retransmission,
recitals 9-15 and art. 1.2, 1993 O.J. (L 248/15) 15, 16, 18 (localizing such
broadcasts in transmitting E.C. countries, subject to safeguard rules for
borderline cases), with the Directsatellitensendung case,
Judgment of Nov. 30, 1989, Oberlandesgericht (Vienna), 1990 GRUR Int. 537, 539,
aff'd, Judgment of June 16, 1992, Oberster Gerichtshof (Austria), 1992
GRUR Int. 933, translatedin 24 Int'l Rev. Indus. Prop. & Copyright
L. 665 (1993) (localizing such broadcasts in receiving country).
13.
Compare Eugen Ulmer, Intellectual Property Rights and the Conflict
of Laws (English trans. 1978) (explaining European conflicts approach to
the choice of differing rules for contractual transfers of intellectual
property), with Geller, International Copyright, supra note 7, §
6[2] at INT-210 to INT-234 (reconciling European and United States conflicts
approaches relative to copyright contracts).
14.
See generally Thomas G. Guedj, The Theory of the Lois de Police, A
Functional Trend in Continental Private International Law: A Comparative
Analysis with Modern American Theories, 39 Am. J. Comp. L. 661 (1991)
(criticizing the collapsing of European distinctions between rules and
exceptions into undifferentiated policy analysis in United States conflicts
law); Paul Edward Geller, Conflicts of Laws in Cyberspace: Rethinking
International Copyright, 44 J. Copyright Soc'y USA 103, 104-06 (1996)
[hereinafter Geller, Conflicts in Cyberspace], in translation in the
foreign-language versions of 31 UNESCO Copyright bull. (no. 1) 3 (1997) and
in expanded forms in The Future of Copyright in a Digital
Environment 27 (P. Bernt Hugenholtz ed., 1996) [hereinafter The Future of
Copyright] and 20 Colum.-VLA J.L. & Arts 571 (1996) (distinguishing European
and United States conflicts analyses relative to network transactions).
15.
Compare François Dessemontet, Internet, le droit d'auteur et le droit
international privé, 92 Rev. suisse de jurisprudence 285, 292 (1996)
(proposing, for copyright, a formal scheme favoring choice of most protective
law, as in general tort cases), with Paul Edward Geller, International
Intellectual Property, Conflicts of Laws, and Internet Remedies, in Intellectual
Property and Information Law: Essays in Honour of Herman Cohen Jehoram
29, 30-33 (Jan J.C. Kabel & Gerard J.H.M. Mom eds., 1998) [hereinafter
Geller, Conflicts and Internet Remedies] (proposing a functional
approach applying laws of the countries where remedies take effect).
16.
See, e.g., William Briggs, The Law of International Copyright
162 (1906) (proposing, at the turn of the century, a "universal law of
copyright . . . [in] a single code, binding throughout the world").
17.
See supra text accompanying notes 3-4. See generally Wilhelm
Nordemann et al., International Copyright and Neighboring Rights Law:
Commentary with special emphasis on the European Community 15-19 (R.
Livingston trans., 1990) (indicating parameters of Berne rights); G.H.C.
Bodenhausen, Guide to the Application of the Paris Convention for the
Protection of Industrial Property 11-16 (1968) (indicating parameters of
Paris rights).
18.
Agreement on Trade-Related Aspects of Intellectual Property Rights, including
Trade in Counterfeit Goods, April 15, 1994, Marrakesh Agreement Establishing
the World Trade Organization, Annex 1C, Legal Instruments - Results of the
Uruguay Round vol. 31, 33 I.L.M. 81 (1994) [hereinafter TRIPs Agreement].
19.
See generally J.H. Reichman, The TRIPs Component of the GATT's
Uruguay Round: Competitive Prospects for Intellectual Property Owners in an
Integrated World Market, 4 Fordham Intell. Prop., Media & Ent. L.J.
171, 179-80 (1993) (critiquing TRIPs language as riddled with "untried,
stopgap provisions, a few serious lacunae, and lots of loopholes").
20.
See generally Ejan Mackaay, The Economics of Emergent Property Rights
on the Internet, in The Future of Copyright, supra note 14,
at 13, 16-25 (analyzing relations between private fences and publicly protected
property rights).
21.
Charles Clark, The Answer to the Machine is in the Machine, in The
Future of Copyright, supra note 14, at 139.
22.
See, e.g., Interactive Multimedia Ass'n, Electronic Commerce for
Content, 2 F. Technology-Based Intell. Prop. Management (Brian Kahin & Kate
Arms eds., August 1996) (reviewing state of the art).
23.
See Mark Stefik, Shifting the Possible: How Trusted Systems and
Digital Property Rights Challenge Us to Rethink Digital Publishing, 12
Berkley Tech. L.J. 137, 139-44 (1997).
25.
Compare Vidéotron Ltée. c. Industrie Microlec Produits Électroniques,
Inc. [1988] R.J.Q. 546 (Canada) (prohibiting commerce in unauthorized decoders of
encrypted television signals on basis of unfair competition), with BBC
Enterprises Ltd. v. Hi-Tech Xtravision, Ltd. [1992] R.P.C. 167 (Ch. Div.), rev'd,
id. at 183-93 (Court of Appeals), reversalaff'd, id. at
194-203 (House of Lords) (U.K.) (prohibiting such commerce on basis of
copyright statute).
26.
See World Intellectual Property Organization [hereinafter WIPO]
Copyright Treaty, arts. 11-12; 36 I.L.M. 65 (1997); Agreed Statements
Concerning the WIPO Copyright Treaty, art. 12; WIPO Doc. CRNR/DC/96 (Dec. 23,
1997); WIPO Performances and Phonograms Treaty, arts. 18-19 36 I.L.M. 76
(1997); Agreed Statements Concerning the WIPO Performances and Phonograms
Treaty, art. 19, WIPO Doc. CRNR/DC/97 (Dec. 23, 1997) (all as concluded by the
Diplomatic Conference in Geneva on Dec. 20, 1996). See generally Julie
E. Cohen, Some Reflections on Copyright Management Systems and Laws Designed
to Protect Them, 12 Berkley Tech. L.J. 161, 163-71, 179-83 (1997)
(critically discussing legislative and treaty initiatives); Paul Goldstein, Copyright
and Its Substitutes, The Kastenmeier Lecture, 1997 Wis. L. Rev. 865
(stressing enforcement as well as policy problems).
27.
See supra text accompanying notes 23-25.
28.
See Joel Reidenberg, Governing Networks and Rule-Making in Cyberspace,
in Borders in Cyberspace: Information Policy and the Global Information
Infrastructure 84, 88-90 (Brian Kahin & Charles Nesson eds., 1997)
[hereinafter Borders in Cyberspace]; Kahin, supra note 6, at 48-53.
29.
See supra text accompanying notes 23-25.
30.
Compare Fred M. Greguras et al., Software Marketing, Licensing and
Distribution in Cyberspace, 1 Cyberspace Law., June 1996, at 4 (describing
current state of software transactions on the Internet), with Stefik, supra
note 23, at 145-152 (distinguishing rules for situations ranging from one-time
use to complex re-uses of works).
31.
See generally Raymond T. Nimmer, Licensing on the Global Information
Infrastructure: Disharmony in Cyberspace, 16 Nw. J. Int'l L. & Bus. 224,
235-47 passim (1995) (noting conflicts of laws, as well as varying
standards for consumer and commercial contracts, in the electronic licensing of
intellectual property).
32.
Cf. W. David Slawson, Binding Promises: The Late 20th-Century
Reformation of Contract Law 65-67, 90-103 passim (1996) (arguing
that, where end-users cannot adequately understand standard-form contracts,
law-makers must review the possible legal effects of standard forms in the
light of public policies).
33.
Compare W. Brian Arthur, Positive Feedbacks in the Economy, Sci.
Am., Feb. 1990, at 92, 99 (hypothesizing that some standards take hold because
of historically contingent clusters of factors, rather than because of
market-driven choices alone), with Stan J. Liebowitz & Stephen E.
Margolis, Should Technology Choice Be a Concern of Antitrust Policy?, 9
Harv. J. Law & Tech. 283, 288-312 (1996) (critiquing this hypothesis, but
admitting that intellectual property can be a factor).
34.
See generally J.H. Reichman, Electronic Information Tools: The Outer
Edge of World Intellectual Property Law, 24 Int'l Rev. Indus. Prop. &
Copyright L. 446, 461-67 (1993) (explaining, in a seminal analysis, how
policies favoring the free flow of information impact on the legal validity of
self-help measures, coupled with purported contracts, to control access to
digitized materials).
35.
Compare Sega Enterprises, Ltd. v. Accolade, Inc., 977 F.2d 1510, 1521-28
(9th Cir. 1992) (allowing decompilation as fair use), with Council Directive
91/250/EEC of 14 May 1991 on the legal protection of computer programs, art.
9(1), 1991 O.J. (L 122/42) 42, 46 (invalidating contractual terms that purport
to prohibit decompilation).
36.
See John Perry Barlow, The Economy of Ideas: A Framework for
Rethinking Patents and Copyrights, Wired, Mar. 1994, at 84, also
published as Selling Wine without Bottles: The Economy of Mind on the Global
Net, in The Future of Copyright, supra note 14, at 169.
37.
See generally Richard Lick, La juste communication 28-29 (1988)
(observing the cumulation of media, not replacement of older by newer media,
through history).
38.
But cf. Pamela Samuelson, Copyright, Digital Data, and Fair Use in
Digital Network Environments, in The Electronic Superhighway 117,
125 (Daniel Poulin, et al. eds., 1995) (opining that copyright might still be
necessary, "as a kind of deus ex machina" to justify, at least
ideologically, "the use of technological and contractual measures").
39.
Cf. Neal Bowers, Words for the Taking: The Hunt for a Plagiarist
(1997) (telling the tale of plagiarism of poetry, albeit in print, and
dramatizing how such takings violate the poet's moral interests, by presenting
one's intimate thoughts and feelings in corrupted texts and passing them off as
another's).
40.
Compare Paul Edward Geller, The Universal Electronic Archive: Issues
in International Copyright, 25 Int'l Rev. Indus. Prop. & Copyright L.
54, 63-66 (1994) (stressing the importance of the right to attribution of
authorship of, and possibly of hypertext reference back to, prior works in
digital networks), with Adolf Dietz, General Report: Authenticity of
Authorship and Work, in ALAI Study Days, Amsterdam, 4-8 June 1996:
Copyright in Cyberspace 165, 176 (Marcel Dellebeke ed., 1997) [hereinafter
ALAI: Copyright in Cyberspace] (contemplating producers' as well as
authors' rights to assure the authenticity of digitized works, subject to some
"balancing of interests").
41.
See generally Torsten Bettinger, Trademark Law in Cyberspace: The
Battle for Domain Names, 28 Int'l Rev. Indus. Prop. & Copyright L. 508,
519-42 (1997) (analyzing significance of trademarks, trade names, and related
interests for securing Internet domain names); Burk, supra note 6, at
28-36 (highlighting the relevance of software and process patents in network
contexts); Reichman, supra note 34, at 468-75 (arguing for new rights in
such contexts).
42.
Cf. TRIPs Agreement, supra note 18, arts. 41-61 passim
(providing for enforcement measures, in particular at national borders in
geographical space, but not expressly in cyberspace); Geller, TRIPS Dispute
Settlements?, supra note 4, at 101-02, 106-12 (questioning whether
TRIPs decision-makers may fill such gaps).
43.
See supra text accompanying notes 23-25.
44.
See supra text accompanying notes 13-14.
45.
See Geller, International Copyright, supra note 7, § 6[1][a] and
authorities cited therein, at INT-201 to INT-210.
46.
See Geller, Conflicts in Cyberspace, supra note 14, at 112-16;
Geller, Conflicts and Internet Remedies, supra note 15.
47.
Cf. Reebok International, Ltd. v. Marnatech Enterprises, Inc., 970 F.2d
552 (9th Cir. 1992) (freezing alleged infringer's bank account in United
States, on basis of showing of cross-border trademark infringement from Mexico
to United States).
48.
Compare Playboy Enter., Inc. v. Chuckleberry Publ. Inc., 939 F. Supp.
1032 (S.D.N.Y. 1996) (issuing complex set of orders to stop web-site in Italy
from infringing trademark in the United States), with Religious Tech.
Ctr. v. Netcom On-Line, Inc., 907 F. Supp. 1361, 1382-83 (N.D. Cal. 1995)
(refusing to grant preliminary injunction against bulletin-board and network
services pending the resolution of factual issues).
49.
Compare Telstra Corp. Ltd. v. APRA Ltd. (Australian High Court), (1997)
38 I.P.R. 294, 146 A.L.R. 649 (holding mobile-telephone service liable for
infringing copyright in music that it relayed to parties put on hold), with
Religious Technology Center v. Netcom On-Line, Inc., 907 F. Supp. 1361 (N.D.
Cal. 1995) (reasoning that bulletin-board service with relationship to party
inputting materials might be liable for infringing copyright in them, but
holding that network service merely relaying materials, absent proof of
scienter, is not liable).
50.
See, e.g., Scientology v. XS4ALL, Order of March 12, 1996, President
District Court, The Hague (Netherlands), reported in 1996 Mediaforum B59
(declining, at initial stage, to hold Internet providers liable for access to
copyright materials placed on their servers' websites without their knowledge),
translated in Dirk J.G. Visser, Netherlands, in ALAI:
Copyright in Cyberspace, supra note 40, at 139.
51.
See supra text accompanying notes 43-50.
52.
See supra text accompanying notes 8-12.
53.
Compare I. Trotter Hardy, The Proper Legal Regime for "Cyberspace,"
55 Univ. Pitt. L. Rev. 993 (1994) (contemplating spontaneous development of
common cyber-law on model of medieval law merchant), with Paul Frissen, The
Virtual State: Postmodernisation, Informatisation and Public Administration, in
The Governance of Cyberspace 111 (Brian D. Loader ed., 1997)
(contemplating autonomous self-regulation of diverse communities through
networked administrations).
54.
See generally Henry J. Perritt, Jr., Dispute Resolution in Electronic
Network Communities, 38 Vill. L. Rev. 349 (1993) (elaborating a framework
for handling legal claims in cyberspace); Thomas Dreier, Copyright Law and
Digital Exploitation of Works: The Current Copyright Landscape in the Age of
the Internet and Multimedia 43-44 (C. Thomas trans., 1997) (discussing
cross-border jurisdiction and remedies).
55.
See supra text accompanying notes 7-15.
56.
See supra text accompanying notes 28-35.
57.
See, e.g., Playboy Enter., Inc. v. Chuckleberry Publ. Inc., 939 F. Supp.
1032 (S.D.N.Y. 1996) (ordering web-site in Italy to stop trademark infringement
in the United States); Panavision Int'l L.P. v. Toeppen, 945 F. Supp. 1296
(C.D. Cal. 1996) (prohibiting domain name preemptively filed and used in
conflict with trademark). But cf. Cavani c. Solignari, Order of Oct. 23,
1996, Tribunal of Modena (Italy), 1996 Annuari Italiani di Diritto d'Autore 279
(declining to impose liability for unfair competition resulting from the use,
on a web-site for lawyers and jurists, of a domain name similar to the trade
name of a legal journal, but enjoining any such confusing use).
58.
Compare U.S. Dep't of Commerce, NTIA Statement of Policy, June 5, 1998, Management
of Internet Names and Addresses <http://www.ntia.doc.gov/ntiahome/domainname/6_5_98dns.htm>
(proposing not-for-profit corporation to coordinate domain-name regime and
WIPO-convened process to develop a uniform approach to trademark/domain name
disputes in that regime), with WIPO, Interim Report of the WIPO Internet
Domain Name Process, Dec. 23, 1998, The Management of Internet Names and
Addresses: Intellectual Property Issues <http://wipo2.wipo.int/process/eng/processhome.html>
(setting out interim recommendations).
59.
See Paris Convention, supra note 3, art. 8. See generally Bodenhausen,
supra note 17, at 133-34 (explaining that rules protecting trade names,
notably relative to trademarks, may vary).
60.
Cf. Frederick W. Mostert, Well-Known and Famous Marks: Is Harmony
Possible in the Global Village?, 86 Trademark Rptr. 103 (1996) (considering
treaty provisions on well-known marks as the basis for a harmonizing approach).
61.
See, e.g., infra text accompanying notes 61-66 (noting doctrinal
tensions between systems that make harmonization difficult) and 73-78 (noting
the risk of hyper-regulation of networks by multiple, uncoordinated
law-makers).
62.
See, e.g., Goldstein, Copyright's Highway, supra note 6,
at 165-72, 190-96; Bernard Edelman, La propriété littéraire et artistique
27-30, 65-69, 94-95 (1989) (touching on such tensions from United States and
French points of view, respectively). See generally Paul Edward Geller, Legal
Transplants in International Copyright: Some Problems of Method, 13
U.C.L.A. Pa. Basin L.J. 199, 218-30 (1994) (proposing criteria for acceptable
transplants).
63.
See WIPO Copyright Treaty, supra note 26, Preamble, arts. 8, 10;
Agreed Statements Concerning the WIPO Copyright Treaty, supra note 26,
arts. 1(4), 8, 10; WIPO Performances and Phonograms Treaty, supra note
26, Preamble, arts. 7, 10, 11, 14, 16; Agreed Statements Concerning the WIPO
Performances and Phonograms Treaty, supra note 26, arts. 7, 11, 16.
64.
See generally Alain Strowel, Droit d'auteur et copyright:
Divergences et convergences 144-49, 290-91 (1993) (noting differences
between Continental European and Anglo-American legal systems in legislative
and judicial techniques for determining the scope of copyright).
65.
See André Lucas, France §§ 8[1][b]-8[2], in 1 Int'l Copyright
Law & Practice, supra note 7, at FRA-110 to FRA-123; Adolf
Dietz, Germany §§ 8[1][b]-8[2], in 2 Int'l Copyright Law
& Practice, supra note 7, at GER-93 to GER-109.
66.
See David Nimmer, United States §§ 8[1][b]-8[2][a], in 2 Int'l
Copyright Law & Practice, supra note 7, at USA-129 to USA-144.
67.
See Mario Fabiani, The Geneva Diplomatic Conference on Copyright and
the Rights of Performers and Phonogram Producers, [1997] Ent. L. Rev. 98,
102; André Lucas, Intellectual Property and the Global Information
Infrastructure, 32 UNESCO Copyright bull. (no. 1) 3 (1998).
68.
See Mihàly Ficsor, The Spring 1997 Horace S. Manges Lecture:
Copyright for the Digital Era: The WIPO "Internet" Treaties, 21
Colum.-VLA J.L. & Arts 197 (1997).
69.
See supra text accompanying notes 21-29.
70.
See supra text accompanying notes 54, 57-59. Another initiative would
network databases in patent and trademark offices worldwide to facilitate
transnational searches and examinations. See Charles Berman, Moving
the patent process into the 21st century, Managing Intell. Prop., Mar.
1997, at 24.
71.
See, e.g., Huston c. Turner Entertainment, Judgment of May 28, 1991,
Cass. civ. 1re (France), 149 Rev. Int'le Dr. d'Auteur 197 (1991), translated
in 23 Int'l Rev. Indus. Prop. & Copyright L. 702 (1992) (recognizing
foreign author's moral rights pursuant to domestic private international law
without reference to any treaty), on remand, Judgment of Dec. 19, 1994,
Cour d'appel, chs. réunies (Versailles), 164 Rev. Int'le Dr. d'Auteur 389
(1995).
72.
See generally Ferenc Majoros, Le droit international privé 8-10
(3d ed. 1990) (indicating that rules governing conflicts of laws are often
dictated by treaty).
73.
It suffices to glance at reference works in the field to see the difficulty of
characterizing these new creatures in traditional terms. See, e.g., Ian
Brownlie, Principles of Public International Law 69 (4th ed. 1990) (hesitating
to characterize sui generis entities in general terms of international
law absent treaty terms on point, but proposing that their status only be
conditionally determined "for particular purposes"). Cf. Paul
Reuter, Introduction to the Law of Treaties 33 (2d English ed. 1995)
(noting the possibility of "an agreement between a State and an
individual," but doubting the application of "the legal régime of
inter-State treaties except on a very limited number of points").
74.
See, e.g., David Johnson & David Post, The Rise of Law on the
Global Network, in Borders in Cyberspace, supra note 28, at
3; Henry H. Perritt, Jr., Jurisdiction in Cyberspace: The Role of
Intermediaries, in Borders in Cyberspace, supra note 28, at
164 (both indicating the resources of network systems to enforce program and
legal rules that they impose on end-users).
75.
See National Research Council, supra note 2, at 22-24, 197-230 passim.
Cf. J.H. Reichman & David Lange, Bargaining Around the TRIPs
Agreement: The Case for Ongoing Public-Private Initiatives, 9 Duke J. Comp.
& Int'l Law (1998) (analyzing private-public initiatives, especially
regarding intellectual property).
76.
See supra text accompanying notes 57-59. See, e.g., U.S. Dep't of
Commerce, supra note 58 (broaching antitrust and jurisdictional issues
that new domain-name regime might raise); WIPO, Interim Report of the WIPO
Internet Domain Name Process, supra note 58 (exploring interim proposals
with regard to the relations between international arbitration and the
jurisdiction of national courts over domain-name disputes).
77.
See supra text accompanying notes 7-12. Note that the laws implementing
public policies, such as antitrust laws, are not necessarily subject to the
same conflicts analyses as private rights of intellectual property. Cf.
Hanns Ullrich, TRIPS: Adequate Protection, Inadequate Trade, Adequate
Competition Policy, 4 Pac. Rim L. & Pol'y J. 153, 196 (1995)
("antitrust is by no means bound to take intellectual property-based
territorial divisions as sacrosanct").
78.
See Walter S. Baer, Will the Global Infrastructure Need Transnational
(or Any) Governance, in National Information Infrastructure
Initiatives: Vision and Policy Design 532, 539-48 (Brian Kahin &
Ernest Wilson eds., 1997); Reidenberg, supra note 28, at 91-100.
79.
See supra text accompanying notes 28-30.
80.
See, e.g., Slawson, supra note 32, at 21-31 passim
(highlighting that acceptance of contract terms without fully understanding
them is often unavoidable in a technologically complex society and that complex
terms are often cryptically incorporated by reference in short-form standard
contracts).
81.
See Johnson & Post, supra note 74, at 21-37 passim.
82.
Cf. Nimmer, supra note 31, at 239-40 (asking how
"humanistic" contractual doctrines of knowing acceptance might apply
to automated electronic commerce).
83.
See generally Stig Strömholm, Right of Privacy and Rights of the
Personality, a Comparative Survey (1967) (surveying rights of privacy in
different legal cultures); Ivan Cherpillod, L'objet du droit d'auteur 152-71 passim
(1985) (surveying exceptions in different laws allowing for creatively
reworking copyright materials); Cohen, supra note 26, at 175-187
(questioning enforceability of overbroad contractual waivers).
84.
See Rudolf Schlesinger, The Common Core of Legal Systems: An Emerging
Subject of Comparative Study, in XXth Century Comparative and Conflicts
Law: Legal Essays in Honor of Hessel E. Yntema 65, 76-77 (Kurt H.
Nadelmann, et al. eds., 1961) (explaining methodology of deriving principles
common to diverse legal cultures). See, e.g., Paul Edward Geller, Toward an
Overriding Norm in Copyright: Sign Wealth, 159 Rev. Int'le Dr. d'Auteur
3 (1994) (elaborating a norm common to both Anglo-American and Continental
European copyright cultures, on the basis of which hard cases may be coherently
resolved).
85.
See Geller, International Copyright, supra note 7, § 1[2] at
INT-11, § 2[3][b] at INT-39. See also Adolf Dietz, Copyright Law in
the European Community 9 (English trans., 1978) (speaking of the
"more or less gentle and gradual pressure towards harmonization"
exercised by Berne).
86.
Ernst Rabel, 1 The Conflict of Laws: A Comparative Study 55 (2d ed.
1958).
87.
See Harold A. Innis, Empire and Communications 5 (1950, new ed.
by David Godfry, 1986) (noting that "civilization reflects the influence
of more than one medium, and ... the bias of one medium towards
decentralization is offset by the bias of another medium toward
centralization"); also Harold A. Innis, Minerva's Owl, in The
Bias of Communication 3, 20-32 passim (1951, new ed. 1995)
(indicating roles of paper and printing in transition from feudal to modern
orders).