The Multiplicity of Copyright Laws on the InternetMarketa TrimbleARTICLE - Fordham Intellectual Property, Media & Entertainment Law Journal
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The Multiplicity of Copyright Laws on the Internet
Marketa Trimble

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From the early days of the Internet, commentators have warned that it would be impossible for those who act on the Internet (“Internet actors”) to comply with the copyright laws of all Internet-connected countries if the national copyright laws of all those countries were to apply simultaneously to Internet activity. A multiplicity of applicable copyright laws seems plausible at least when the Internet activity is ubiquitous— i.e., unrestricted by geoblocking or by other means—given the territoriality principle that governs international copyright law and either the lex loci delicti or lex loci protection is choice-of-law rules that countries typically use for copyright infringements.


Commentators have advanced various proposals to eliminate this multiplicity of applicable national copyright laws. Some experts have called for a new and universal legal regime to govern the Internet that would be distinct from the legal regimes of individual countries; this proposal would result in a single global copyright law that would govern all Internet actors without regard to any particular national copyright laws. Other experts have suggested that the multiplicity be addressed by unifying national copyright laws and making the laws identical or almost identical; this suggestion is another way to make a single set of copyright law standards apply globally. Experts working at the intersection of intellectual property law and conflict of laws have proposed conflict-of-laws solutions to simplify the enforcement of copyright on the Internet; their solutions would not eliminate the differences among national copyright laws but would limit the number of national copyright laws that would apply to acts on the Internet in any given scenario.


This Article posits that the multiplicity of applicable national copyright laws on the Internet is not as significant a problem for law-abiding Internet actors as some commentators fear. What makes the multiplicity workable for Internet actors are the realities—or inefficiencies—of cross-border copyright enforcement that de facto limit the number of potentially applicable national copyright laws. This Article reviews the solutions that have been proposed to address the multiplicity problem and examines the objections to the proposals that have already been or could be raised. The Article then analyzes the current realities of copyright enforcement on the Internet and contrasts the realities with the anticipated workings of the proposed solutions. 






From the beginnings of the Internet1 a number of commentators have warned that Internet actors—Internet service providers, website operators, content providers, and Internet users—cannot comply with copyright law on the global digital network (or can comply only with exorbitant costs) because of the large number of countries’ copyright laws (“multiple copyright laws”) that apply to the actors’ Internet activities.2 The multiplicity of potentially applicable national copyright laws (the “multiplicity problem”) is caused by the nature of copyright as an intangible right created by national laws and by the rules for choice of law applicable to copyright infringements and to other copyright-related acts and occurrences.


To determine which country’s copyright law applies, national courts typically use (for infringements and often also for other copyright-related acts and occurrences)3 the choice-of-law rule that points to the law of the place of the tortious activity (lex loci delicti, lex loci protectionis).4 Unless Internet activities are limited geographically through geoblocking5 or some form of censorship that disables access to content on the Internet,6 the effects of the activities extend to all countries connected to the Internet (those countries where the results of the activities can be viewed, downloaded, or streamed) where—at least in theory—the activities cause each of the countries to be a place of tortious activity, thereby subjecting Internet actors to the copyright laws of each of the countries.7


The multiplicity of national copyright laws is problematic because countries’ copyright laws continue to differ despite a significant degree of harmonization of national copyright laws in the past 130 years.8 Copyright practice itself does mitigate some of the continuing national copyright law differences when persons or entities pursue multinational and comprehensive copyright strategies in countries with different laws;9 however, the differences among laws complicate cross-border activities involving copyrighted works,10 particularly when less sophisticated persons or entities are involved who cannot navigate the differences as effectively (or navigate them at all) as more experienced persons or entities can.


In the offline world it seems more likely that parties will realize that the copyright laws of multiple countries may govern their activities; for example, a book publisher is likely to recognize the possibility that multiple copyright laws will be applicable when the publisher ships physical books to and sells them in a foreign country. However, many Internet actors seem oblivious to the possibility that their Internet acts may subject them to a foreign country’s laws; the actors might see their online activity, such as posting a photograph on a website, as an activity that occurs in a single country—that country being where they are located when they post the photograph. Alternatively, some Internet actors may mistakenly believe that only the country of their domicile may legitimately regulate their conduct,11 or that because their acts occur on the Internet no country will or may regulate their conduct.12


Because the Internet makes it extremely easy to engage in cross-border activities, it enables all Internet actors to engage in such activities, and even actors who are not versed in the intricacies of international copyright are exposed to cross-border dealings involving copyright issues. While offline cross-border activities concerning copyrighted works13 have often been performed by sophisticated repeat players such as publishing houses, motion picture studios, and press agencies, online activities involving crossborder copyright issues concern Internet actors with varying levels of awareness of, or possibly no awareness of, or experience with, foreign copyright laws that might apply to their activities.14 The multiplicity problem is exacerbated in the online world because the number of countries’ laws implicated will typically be much higher than in the offline world.15


Differences among countries’ copyright laws impact copyright issues such as protectable subject matter, initial copyright ownership, licensing and assignments, rights, and exceptions and limitations to the rights. Internet actors are able to mitigate some of the differences by identifying copyright owners and obtaining any necessary consent or licenses from them; however, transaction costs may be high, and may even exceed the costs of assuming the risk of copyright litigation when the Internet actors do not clear copyright beforehand. Differences among national copyright laws complicate the identification of initial and subsequent copyright owners; the differences also make it difficult to determine where particular rights arise and where national laws carve out exceptions and limitations that allow for use of copyrighted works without permission or a license in a particular situation. The following two examples illustrate the complexities of cross-border activities involving copyrighted works.


The first example concerns rules for initial copyright ownership; the rules vary among countries, and one who is the owner of a copyright to a work in one country might not be the owner of the copyright to the same work in another country (under the latter country’s law).16 Assume, for example, that a photographer employed by an advertising agency in the United States takes a photograph within the scope of his employment. Under the work made for hire doctrine applicable in the United States, the agency is the initial owner of copyright to the photograph.17 Germany, however, has no work for hire doctrine;18 in Germany the initial copyright ownership vests in the author, which in this example is the photographer who, absent his consent or a license he has granted, holds the exclusive rights that attach to the copyright.19 If the agency intends to use the photograph on a website, it does not need consent or a license from the photographer to do so in the United States, but it will need his consent or license for other countries, such as Germany, where the website is accessible and where the photographer—and not the agency—owns the copyright to the photograph.20


The second example of differences in national copyright laws concerns exceptions and limitations to copyright, which also vary among countries; acts that may be performed in one country without permission or a license may require permission or a license in another country.21 For example, one of the enumerated exceptions under the German copyright statute allows the taking and posting on the Internet (i.e., the acts of reproduction, distribution, and making available to the public) of a photograph of a publicly accessible sculpture;22 there is a similar enumerated exception in the US Copyright Act, but the US exception does not cover the acts when they concern a stand-alone sculptural work (a sculpture that is not embodied in an architectural work).23 This difference in national laws means that the posting on the Internet of a photograph of a publicly accessible stand-alone sculpture without permission or a license will not infringe the copyright to the sculpture under German copyright law; however, in the United States the posting (the public display) of the photograph on the Internet may infringe the copyright to the sculpture under US copyright law (although the fair use doctrine under US law24 might provide a successful defense in some cases).25


Commentators have asserted that the multiplicity problem is a major hurdle for the Internet and have developed solutions that address the problem by providing for a single copyright law to apply to Internet activities.26 Two types of solutions seek to limit the number of applicable copyright laws, but they employ different means to achieve the goal.27 The first type of solution calls for the creation of a single set of global copyright law standards that would apply on the Internet globally; the set of standards could be introduced either as an extranational Internet-specific copyright law (that would be either legislated or developed judicially) or as a uniform copyright law implemented through national legislations.28 The second type of solution aims to narrow the number of applicable copyright laws by utilizing special conflict-of-laws rules—rules for choice of applicable law, personal jurisdiction, and the recognition and enforcement of foreign judgments; the special rules would operate together to achieve a result in which only a single country’s law (or the laws of a limited number of countries) applies (or apply) to an Internet activity in any given case.29 So far the two types of proposed solutions have gained little or no support from national governments at the national and international levels,30 and the specter of a multiplicity of applicable national copyright laws continues to loom over the Internet, at least in theory.


In practice, various limitations on copyright enforcement reduce the number of copyright laws that will apply to a particular activity on the Internet. This Article argues that these limitations fashion a system in which actors who wish to comply with copyright laws face fewer challenges on the Internet than critics who perceive a multiplicity problem seem to assume. Some of these limitations arise because of countries’ limited abilities to enforce their laws; as Jack Goldsmith noted in 1998 during the early years of the commercial Internet, “the skeptics [have] exaggerate[d] the threat of multiple regulation of cyberspace information flows” because “[t]his threat must be measured by a regulation’s enforceable scope.”31 Additional limitations come from the practicalities of litigation, when copyright owners must decide which country’s or countries’ laws they can and want to rely on when they enforce their rights.


Although litigation represents only a small percentage of the enforcement actions that copyright owners employ (only a small percentage of copyright disputes result in court proceedings and enforcements of final judgments), the availability and course of litigation impacts all other enforcement actions. Often the steps that precede litigation will suffice to enforce copyright, and third parties such as advertisers and payment processors may assist in extrajudicial enforcement, although Internet actor behavior and copyright owner negotiating positions will ultimately be affected by the actual ability of copyright owners to effectively enforce their copyrights (i.e. whether copyright laws can and will actually be enforced).32 Given the global nature of most Internet actions and the persisting differences among countries’ copyright laws, conflict-of-laws solutions to the multiplicity problem should assist in making effective cross-border enforcement feasible and thus positively impact the functioning of copyright laws on the Internet. The question is whether the existing proposals address the practical inefficiencies of cross-border copyright enforcement sufficiently to improve on the status quo; it seems that even if countries were to adopt the conflict-of-laws rules that have been proposed many litigation limitations would persist and continue to limit the number of countries’ laws that are de facto regulating conduct on the Internet in particular cases.


This Article begins by analyzing the proposals for solving the multiplicity problem. The first part discusses proposals that seek to achieve single global copyright standards, and the second part presents proposed conflict-of-laws solutions. For each type of solution the Article reviews existing critiques of the proposals and examines additional rationales that make the proposals unacceptable or unpalatable to national governments, including, for the conflict-of-laws solutions, the difficulty of accepting the notion of copyright infringement as a single-place tort. The third part confronts the theoretical concern about the multiplicity of potentially applicable copyright laws on the Internet and the realities of copyright enforcement. The Article posits that the proposed solutions, if implemented, would not dramatically change the copyright litigation landscape because many of the current realities of cross-border copyright litigation would continue to shape the landscape.



* Associate Professor of Law, William S. Boyd School of Law, University of Nevada, Las Vegas. The author thanks Joost Blom, Paul Geller, Paul Goldstein, and Eric Priest for their comments and suggestions, and also thanks the participants of both the 2014 International Intellectual Property Scholars Roundtable and the 14th Annual Intellectual Property Scholars Conference. The author would like to express her gratitude for research support to Andrew Martineau at the Wiener-Rogers Law Library of the William S. Boyd School of Law, the library staff of the Max Planck Institute for Comparative and International Private Law in Hamburg, Germany, and the library staff of the Max Planck Institute for Intellectual Property and Competition Law in Munich, Germany. The author recognizes her colleagues in the International Law Association Committee on Intellectual Property and Private International Law for the continuing inspiration that they provide. The author thanks Gary A. Trimble for his valuable editing suggestions.


  1. The term “Internet” is used throughout this Article as a generic term for any type of electronic communication, even if it is not based on the Internet protocol. For a discussion of the current use of the term, see Marketa Trimble, The Future of Cybertravel: Legal Implications of the Evasion of Geolocation, 22 Fordham Intell. Prop. Media & Ent. L.J. 567, 575 n.25 (2012).

  2. See, e.g., Graeme B. Dinwoodie, A New Copyright Order: Why National Courts Should Create Global Norms, 149 U. Pa. L. Rev. 469, 480–81 (2000); Andreas P. Reindl, Choosing Law in Cyberspace: Copyright Conflicts on Global Networks, 19 Mich. J. Int’l L. 799, 807–08 (1998) (discussing how different national copyright laws govern a work which has been unlawfully reproduced in one country and made available to the public in another).

  3. See, e.g., Graeme B. Dinwoodie, Developing A Private International Intellectual Property Law: The Demise of Territoriality, 51 Wm. & Mary L. Rev. 711, 729–33 (2009) (reviewing the scope of application of the lex loci protectionis rule).

  4. Most countries apply these rules to copyright infringement; countries’ rules for choice of law applicable to other copyright-related acts and occurrences vary. Some countries apply the rule of the law of the protecting country (lex loci protectionis), meaning the law of the country whose law provides copyright protection to the work at issue and in which copyright was infringed. Whether the Berne Convention mandates the rule or not has been disputed. See, e.g., Jane C. Ginsburg, Global Use/Territorial Rights: Private International Law Questions of the Global Information Infrastructure, 42 J. Copyright Soc’y U.S.A. 318, 336–37 (1995) [hereinafter Global Use/Territorial Rights] (noting that the language “where protection is sought” in Article 5(2) of the Berne Convention may not necessarily refer to the law of where the infringement occurred, but rather to the law of the forum country, i.e., lex fori); 2 Sam Ricketson & Jane C. Ginsburg, International Copyright and Neighbouring Rights: The Berne Convention and Beyond § 20.01 (2d ed. 2005) (“[D]eriving from the Berne text supranational choice of law rules is a delicate, if not improbable, operation.”); Paul Goldstein & Bernt Hugenholtz, International Copyright: Principles, Law, and Practice 129 (2010) (arguing that Article 5(2) of the Berne Convention is not a choice of law provision but is “essentially no more than a rule barring discrimination against foreign right holders, which requires a country to apply the same law to works of foreign origin as it applies to works of its own nationals”).

  5. See Trimble, supra note 1, at 587–90.

  6. See, e.g., Evgeny Mozorov, Egypt Action May Spread Internet Kill Switch Idea, S.F. Gate, (Feb. 6, 2011), []; Christopher Beam, Egypt Protest Internet Shut Off: How did the Egyptian government turn off the Internet?, Slate (Jan. 28, 2011, 4:55 PM), []; James Crowie, Egypt Leaves the Internet, Dyn Research Blog (Jan. 27, 2011), [].

  7. See, e.g., Global Use/Territorial Rights, supra note 4, at 322 (concluding that effective judicial deterrence of piracy requires that intellectual property rights holders be able to sue infringers in every country that infringing material may be received); Graeme W. Austin, Social Policy Choices and Choice of Law for Copyright Infringement in Cyberspace, 79 Or. L. Rev. 575, 588 (2000) (observing that applying lex loci in the digital world involves the challenges of applying multiple copyright laws). This approach to choice of law is also known as the “mosaic approach” and is consistent with the “Bogsch Theory,” named after Arpad Bogsch, a WIPO Director, who advanced the proposition that “any utilisation of a protected work that is relevant from the viewpoint of copyright takes place where the work—through copies, through performance, or through any kind of communication technique—is actually made available to the public.” Mihály Ficsor, Direct Broadcasting by Satellite and the ‘Bogsch Theory’, 18 Int’L Bus. Law. 258, 258 (1990). See also Rita Matulionytė, Law Applicable to Copyright: A Comparison of the Ali and Clip Proposals 126–29 (Edward Elgar 2011); Josef Drexl, Internationales Immaterial- GüTerrecht, in MüNchner Kommentar zum BGB 251–58 (5th ed. 2010)

  8. In the past 130 years, countries have concluded international treaties to harmonize national copyright laws; however, the treaties include various flexibilities that allow countries to maintain differences in their national laws. E.g., Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1896, 11850 U.N.T.S. 223 (1986) [hereinafter Berne Convention] (as revised at Paris July 4, 1971 and amended Sept. 28, 1979); Agreement on Trade-Related Aspects of Intellectual Property Rights, Marrakesh Agreement Establishing the World Trade Organization, April 15, 1994, 1867 U.N.T.S. 154 [hereinafter TRIPS Agreement]; WIPO Copyright Treaty, Dec. 20, 1996, WCT, S. TREATY DOC. NO. 105-17. For an overview of flexibilities—both those intentionally introduced in the treaties by treaty negotiators and those unintentionally persisting see, for example, Marketa Trimble, Advancing National Intellectual Property Policies in a Transnational Context, 74 Md. L. Rev. 203 (2015).

  9. For example, countries may agree that employers should be able to exercise economic rights to works that their employees create in the course of employment. The United States has a work-for-hire doctrine that achieves this result by vesting copyright to the employee’s work in the employer; other countries with no work-for-hire doctrine allow for copyright to employee-created works to be subject to an exclusive license that is either granted in an employment contract or created by law. Compare 17 U.S.C. §201(b) (2012) with Zhongua Renmin Gonghe Guo Zhuzuo Quan Fa [Copyright Law of the People’s Republic of China] (promulgated by the Nat’l People’s Cong., Sept. 7, 1990, amended Feb. 26, 2010 by the Standing Comm of the Nat’l People’s Cong., amendments effective Apr. 1, 2010) art. 16, available at id=186569 [], and Code De La Propriété Intellectuelle art. L113-9 (Fr.).

  10. See discussion supra Introduction; see also Global Use/Territorial Rights, supra note 4, at 323–30; Austin, supra note 7, at 603–10.

  11. Although in many instances Internet actors may be subject to the law of only a single country, and that country may be the country of their domicile (place of residence, place of incorporation, or principal place of business), it is possible that in other instances actors may also be subject to the laws of other countries.

  12. See infra Part III.A (discussing the unawareness of many Internet actors with respect to the cross-border implications of their conduct).

  13. In this context, cross-border activities concerning copyrighted works do not include de minimis importation for non-commercial purposes.

  14. This Article leaves aside any discussion of whether the Internet is encouraging copyright-infringing behavior because of the anonymity it provides and the misconceptions it creates (e.g., perceptions that it is always legal to view, download, or stream any content that is available for free online).

  15. Dinwoodie, supra note 2, at 541 (“The problems of cyberspace bring [conflict-of-laws] questions into sharper focus, and it is there that they appear most acute.”).

  16. Some countries apply the law of the country of origin to the issue of initial copyright ownership with the result that the copyright has the same initial copyright owner in these countries as it has in the country of origin (provided that the law of the country of origin is interpreted and applied in the same manner in these countries). See, e.g., Código Civil Português, [C.Civ], Decreto-Lei n.º 47344/66 art. 48 (Port.).

  17. See 17 U.S.C. § 201(b) (2012).

  18. Although no work for hire doctrine exists in Germany, an employer is entitled by law to exercise economic rights to a computer program that was “created by an employee in the performance of his duties or based on instructions from his employer.”Urheberrechtsgesetz [UrhG] [Copyright Law], Sept. 9, 1965, Bundesgesetzblatt [BGBl.] art. 69b(1) (Ger.). This provision is consistent with Directive 2009/24 of the European Parliament and of the Council of 23 April 2009 on the Legal Protection of Computer Programs, 2009 O.J. (L 111) 16, art. 2(3).

  19. German courts will apply German law to determine who the copyright owner is in this case because German courts apply the law of the country where protection is sought to copyright ownership.

  20. If the facts are reversed (if the agency and the photographer were domiciled in Germany), the different scenario would not necessarily create a problem; employment contracts in civil law countries often provide for an exclusive permanent license in favor of the employer. Additionally, US courts could decide to apply German law to assess the ownership of copyright to the photograph if the photographer is a German resident, his employer is a German entity, and the work was performed in Germany. See Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F.3d 82, 91 (2d Cir. 1998) (“[T]he law of the country with the closest relationship to the work will apply to settle the ownership dispute.”). Cf. Paul Edward Geller, Conflict of Laws in Copyright Cases: Infringement and Ownership Issues, 51 J. Copyright Soc’y U.S.A. 315, 327 (2004) (criticizing the choice of law analysis for copyright ownership in Itar-Tass and arguing that the Berne Convention implies a conflict of law rule). But see Global Use/Territorial Rights, supra note 4, at 331 (“Apart from the article specifically addressing the law applicable to determine ownership of copyright in cinematographic works, the Berne Convention proffers no general choice of law rule for copyright ownership.”); William Patry, Choice of Law and International Copyright, 48 Am. J. Comp. L. 383, 409 (2000) (arguing that “there is no Berne Convention requirement to apply national treatment to ownership of copyright”).

  21. E.g., Martin Senftleben, Breathing Space for Cloud-Based Business Models–Exploring the Matrix of Copyright Limitations, Safe Harbours and Injunctions, 4 JIPITEC 87, 91 (2013).

  22. Urheberrechtsgesetz of September 9, 1965, as last amended, art. 59(1).

  23. 17 U.S.C. § 120(a) (2012).

  24. 17 U.S.C. § 107 (2012).

  25. Theoretically, a US court could decide in this scenario to apply German law to the acts of alleged infringement if the court found that German law had the most significant relationship to the acts and the parties. See Restatement (Second) of Conflict of Laws § 145 (1971); Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F.3d 82, 91 (2d Cir. 1998).

  26. Jane C. Ginsburg, Copyright Use and Excuse on the Internet, 24 Colum.-VLA J.L. & Arts 1, 44 (2000) (“Ideally, a choice of law rule that designated the law of a single country to govern the ensemble of Internet copyright transactions would considerably simplify the legal landscape, and thus promote Internet commerce.”).

  27. See, e.g., Andrea Antonelli, Applicable Law Aspects of Copyright Infringement on the Internet: What Principles Should Apply?, 2003 Sing. J. Legal Stud. 147 (2003).

  28. See infra Part I.

  29. See infra Part II.

  30. Some courts have referred to the proposals for special conflict-of-laws rules. See, e.g., Rundquist v. Vapiano, 798 F. Supp. 2d 102, 132 (D.D.C. 2011); Lucasfilm Ltd. v. Ainsworth, [2011] UKSC 39, ¶¶ 93–94; Case C-145/10, Painer v. Standard Verlags, 2011 ECR I-12533, n.31; Case C-616/10, Solvay v. Honeywell, 2012 ECR. 193 , n.24 (opinion of AG Villalón); Case C-170/12, Pinckney v. KDG Mediatech AG, 2013 ECR, (opinion of AG Jääskinen).

  31. Jack J. Goldsmith, Against Cyberanarchy, 65 U. Chi. L. Rev. 1199, 1220 (1998). These limited abilities are shared by all countries and arise from the general limited abilities of countries to enforce their laws extraterritorially. See Trimble, supra note 8, at 11–19 (discussing the difference between the territorial scope of prescriptive jurisdiction and the territorial scope of the actual enforcement power).

  32. E.g., Eric Priest, Acupressure: The Emerging Role of Market Ordering in Global Copyright Enforcement (forthcoming).

Article by

Marketa Trimble*

Vol 25 Book 3

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