Committee on Copyright and Other Legal Matters (CLM)

Report from the WIPO Conference on Private International Law Aspect for the Protections of Works and Objects of Related Rights Transmitted through Global Digital Networks, December 16-18, 1998

Venue: WIPO headquarters, Geneva.
Time: December 16-18, 1998

Professor Jane C. Ginsburg, Professor of Literary and Artistic Property Law Columbia University School of Law, New York City, and Professor Andre Lucas, University of Nantes, France outlined problems concerning the international law aspects. They had different views on which solutions should be recommended to some of the questions raised.

The experts presented questions concerning:

• the term "country of origin" in the Berne Convention art. 5(4)
• choice of forum and recognition for judgement
• choice of law concerning copynght ownership
• choice of law concerning infringement.

It was stated that the Beme Convention is not adjusted to the digital environment concerning these questions. For instance, Internet publication raises questions regarding the determination of where the work has been published.

Concerning the question on how to establish the "country of origin" of a work, Internet publication poses problems. Professor Ginsburg proposed various alternatives to the question:

• country with the most significant connection to the work
• country where the server is located
• the author's residence (complicated when more than one author).

The Berne Convention does not regulate the question of ownership claims. It regulates questions concerning infringements actions.

It was also stated that the Berne Convention afford insufficient guidance as to the law applicable to contracts for transfer of rights.

Another crucial question is: Which law applies to determine whether a copyright infringement has occurred in the digital environment? Various solutions were mentioned:

• the law of the country where the infringement is claimed
• the law of the country where the infringement occured.
• the law of the country where the server is located the law of the country of the authors residence

A treaty choice of law rule will provide a uniform solution to this question. In the absence of such a treaty the issue is remitted to the choice of law rules of the member countries.

Regarding the choice of forum it was emphasised that simplifying the choice of forum will be essential for an effective enforcement of copyright in the global environment.

Conclusion:

The private international law aspects raises many problems to which it will be difficult to reach clear and uniform solutions. It was not mentioned whether the WIPO forum will take steps to propose a treaty concerning these questions. At this stage, the various problems will have to be analysed.

The private international law aspects are of great importance to the copyright issues in general, not particularly related to libraries. The copyright issues are of growing relevance to libraries, and it is therefore important for libraries to take part in, to be aware of, to stay updated and to follow up on the development regarding copyright questions in general. Consequently it is important that IFLA participate and thereby contribute to the copyright questions through these WlPO meetings.