15

A person residing in country A takes a work by an artist in country B and puts it onto a website they own but which is hosted in country C which is intended for an audience of people in country D.

The artist in country B did not give permission for this and wants to pursue legal actions.

Which countries copyright laws apply to this case?

Let's assume that A, B, C and D all signed and ratified the Berne Convention, but their implementations in local laws differ in ways which are relevant to this case.

10

Jurisdiction is generally a matter for courts to decide. For example, in Kernel Records Oy v. Mosley, 694 F. 3d 1294 (2012), the plaintiff, having had their work published in Sweden, had filed a claim there, and lost. They then took the claim to the United States.

Copyright infringement is generally actionable per se - no damage needs to actually be proven or sustained. Typically, the rule is that the proper law will apply. This is the state that seems to have the closest and most real connection to the facts of the case.

Now, where there is more than one jurisdiction in which a claim may be brought - as in your example - a plaintiff may research the relevant statutes to determine which jurisdiction is most likely to afford them the most favourable outcome. It's called forum shopping.

It is likely that the proper law will be that of A or C. This depends on a number of factors:

  • Whether the infringing party profited from the infringement.
    If the infringing party profited from the act, then you are likely to want to bring the matter in A, so that you can recover damages.
  • Whether the infringing party has any presence in B.
    If the party has a presence in B, then a claim in B is likely to be more cost-effective.
    Again, depending on the laws of the country, it may not be possible for the artist to bring a claim against the infringing party if they have no local presence. Some countries have laws that explicitly allow extraterritorial service.
  • Whether the hosting service was aware of the copyright infringement.
    If the hosting service was aware of the infringement and failed to prevent it, then you may be able to claim for contributory infringement - they could then, depending on their contract/agreement with the infringing party, be able to claim for damages. The Napster case may be somewhat relevant to this, but it's hard to say anything concrete when working with hypothetical countries.
    At the very least, a claim against the hosting service - which may just be an injunction ordering the removal of the content - could be fruitful.
  • The actual laws of the countries involved.
    If the artist has sufficient money, they can just choose the forum that is most favourable to them.

In short, private international law is a tricky subject and there are so many factors that need to be accounted for.

  • Thank you for your answer. Could you maybe clarify a bit more about the second bullet point? If the perpetrator has no presence in B, would it still be possible to sue in country B? – Philipp Sep 26 '15 at 13:23
  • 1
    It really, really depends on the laws of the countries. Some countries permit extraterritorial service. – jimsug Sep 26 '15 at 13:28
4

In Canada, the applicability of the Copyright Act to communications that have international participants was elucidated in Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers, [2004] 2 SCR 427, 2004 SCC 45.

The court held that:

An Internet communication that crosses one or more national boundaries “occurs” in more than one country, at a minimum, the country of transmission and the country of reception. To occur in Canada, a communication need not originate from a server located in Canada.

[...]

A real and substantial connection to Canada is sufficient to support the application of our Copyright Act to international Internet transmissions...

In terms of the Internet, relevant connecting factors would include the situs of the content provider, the host server, the intermediaries and the end user. The weight to be given to any particular factor will vary with the circumstances and the nature of the dispute. The conclusion that Canada could exercise copyright jurisdiction in respect both of transmissions originating here, and transmissions originating abroad but received here, is not only consistent with our general law but with both national and international copyright practice.

[...]

So also, in my view, a telecommunication from a foreign state to Canada, or a telecommunication from Canada to a foreign state, “is both here and there”.

That judgement reviews the situation in several other countries for comparison.

They observe that in the United States:

... there is authority [...] for taking copyright jurisdiction over both the sender of the transmission out of the United States and the receiver in the United States of material from outside that country.

In Australia:

The definition of “communication to the public” appears to apply Australian copyright law to communications entirely within Australia, those originating within Australia and received by an end user outside Australia, and those originating outside Australia but received by an end user in Australia

In France:

An analysis of liability in France suggests that “[c]ourts will likely assert jurisdiction not only over transmissions from France, but also transmissions into France that are alleged to cause damage”

1

In this situation, if the laws of country A allow to sue in country A, then you can sue in country A. If the laws of country B allow to sue in country B, then you can sue in country B. And so on.

For example, if country B has very strong laws to protect the rights of its residents anywhere in the world then you may be able to sue in country B. (That would be an unusual situation. For example, you wouldn't expect a British court to get involved because a British citizen is robbed in the USA, but a US court would).

Whether you can enforce the ruling is another question entirely. A ruling in country B is unlikely to help you closing down servers in country C or collecting money from someone residing in country A. Especially if country A doesn't accept that a ruling in country B would interfere with its own laws.

-4

It's much more simple...anywhere that the content was ingested, said exposure, whether found to be infringing or not, is subject to that jurisdiction.

  • 2
    While this is an answer, we would generally like some reference to legal doctrine, case law, or statute to support it. – jimsug Sep 28 '15 at 4:52

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