NEW YORK INTERNATIONAL LAW REVIEW Summer 2000 Vol

NEW YORK INTERNATIONAL LAW REVIEW Summer 2000 Vol. 13, No. 2 Articles 1 International Copyright: Protection for Copyright Holders in the Internet Age Michael J. O’Sullivan 43 Need World’s Collide: The Hudad Crimes of Islamic Law and International Human Rights Edna Boyle-Lewicki 87 Nelson v. Saudi Arabia and the Need for a Human Rights Exception to the Foreign Sovereign Immunities Act Alexander J. Mueller Recent Decisions 127 Favour Mind Limited v. Pacific Shores, Inc. Post Reversion Hong Kong Corporations Are “Citizens or Subjects of a Foreign State” Within the Meaning of 28 U.S.C. § 1332(a)(2) for the Purposes of Subject Matter Jurisdiction, Due to China’s Position That They Are Chinese Citizens. 131 Nieman v. Dryclean U.S.A. Franchise Company, Inc. Eleventh Circuit Holds that Federal Trade Commission’s Franchise Rule Does Not Apply Extraterritorially to Agreement Between U.S. Company and Argentine Citizen. 137 Criminal Proceedings against Donatella Calfa (Court of Justice of the European Communities January 19, 1999) European Court of Justice Holds that Greek Law Requiring Lifetime Expulsion of Foreign Nationals Convicted of Drug Offenses Is Incompatible with Certain Freedoms Guaranteed by EC Law and Not Justified by Public Policy. 141 Beanal v. Freeport-McMoran, Inc. Environmental Action by an Indonesian Citizen Challenging Mining Operations and Cultural Genocide by United States Companies Failed to State a Cause of Action of Customary International Law Under the Alien Tort Claims Act. NEW YORK STATE BAR ASSOCIATION INTERNATIONAL LAW & PRACTICE SECTION Published with the assistance of St. John’s University School of Law Summer 2000] Copyright Protection 1 International Copyright: Protection for Copyright Holders in the Internet Age By Michael J. O’Sullivan* Part I Introduction International copyright infringement is a phrase that carries significant meaning in the Internet age. With one keystroke, a copyrighted work can be accessed, reproduced, or distrib- uted worldwide. Consequently, right holders may not receive any remuneration for their efforts. Further compounding the issue is the problem that the Internet transcends national boundaries. The Internet has truly created a global arena in terms of business, trade, and com- munication. This paper will address international copyright issues created by the Internet. Part II discusses the background of copyright law and the rights that it seeks to protect. Part III addresses the need for increased awareness as technology advances. Part IV addresses regulation of copyright laws in the global arena. Among the items discussed are the World Intellectual Property Organization,1 Berne Convention,2 TRIPs agreement,3 WIPO Copyright Treaty,4 and the WIPO Performances and Phonograms Treaty.5 Also addressed is the United States response to copyright issues in the Internet age via the Digital Millennium Copyright Act.6 Part V discusses the various issues created by international copyright infringement. In addition to the United States presumption against extraterritorial application of U.S. laws,7 a right holder must con- sider whether jurisdiction can be obtained over the infringer and, if so, whether there is a con- venient forum for the action to be held. Further, the courts must wrestle with the appropriate 1. See Convention Establishing the World Intellectual Property Organization (WIPO), July 14, 1967, 21 U.S.T. 1770, 828 U.N.T.S. 3. 2. Berne Convention for the Protection of Literary and Artistic Property (Berne Convention), Sept. 9, 1886, 828 U.N.T.S. 221 (as amended). 3. Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, pmbl., Marakesh Agreement Establishing the World Trade Organization, Annex 1C, 33 I.L.M. 1197 (1994) [hereinafter TRIPs agreement]. 4. WIPO Copyright Treaty, Dec. 23, 1996, 36 I.L.M. 65 (1997). 5. WIPO Performances and Phonograms Treaty, Dec. 23, 1996, 36 I.L.M. 76 (1997). 6. Digital Millenium Copyright Act of 1998, Pub. L. No. 105-304, 112 Stat. 286. 7. For cases dealing with the presumption against extraterritorial application of U.S. laws see, e.g., Bridgeman Art Library v. Corel Corp., 25 F. Supp. 2d 421 (1998); Shaw v. Rizzoli Int’l Publs. Inc., 1999 U.S. Dist. LEXIS 3233 (1999). * Michael J. O’Sullivan was born in the Bronx, New York and received a degree in accounting from Fordham University in 1991. He is currently a fourth-year evening student at St. John’s University School of Law. 2 New York International Law Review [Vol. 13 No. 2 law to apply.8 Part VI considers alternative solutions to the problems of international copyright infringements. Part II A Background of Copyright Law A basic premise of copyright law is to encourage creativity by recognizing a property right in the works of authorship.9 In effect, a copyright is a property that should be respected as any other property right.10 Further, another principle of copyright is to secure the property rights of the actual creator of the work, which follows logically from its purpose of encouraging creativity.11 United States copyright protection has its origin in Article I of the Constitution, which grants Congress the power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and 8. See, e.g., Hasbro Bradley, Inc. v. Sparkle Toys, Inc., 780 F.2d 189, 194 (1985) (commenting on the non-extrater- ritoriality of copyrights); Subafilms, Ltd. v. MGM-Pathie Communs. Co., 24 F.3d 1088, 1095 (1994) (asserting that had Congress intended the Copyright Act to apply extraterritorially, it would have expressly stated so); Gushi Bros. Co. v. Bank of Guam, 28 F.3d 1535, 1540 (1994) (submitting that the Supreme Court affirmed in EEOC v. Arabian Oil Co., 499 U.S. 244, 248 (1991), that U.S. legislation applies only within the jurisdiction of the U.S., unless expressly provided by Congress). 9. See Senator Orrin G. Hatch, Toward a Principled Approach to Copyright Legislation at the Turn of the Millennium, 59 U. PITT. L. REV. 719, 721 (1998) (stating that the first purpose of copyright law is an author’s property rights to her work, articulated in the Copyright Clause of the Constitution); Lisa Anne Katz Jones, Is Viewing a Web Page Copyright Infringement?, 4 U. VIC. APPEAL 60, 70 (1998) (asserting that the primary purpose of copyright law is to protect an author’s rights to her works from misappropriation). But see Matthew G. Passmore, A Brief Return to the Digital Sampling Debate, 20 HASTINGS COMM. & ENT. L.J. 833, 846 (1998) (“The primary purpose of copyright law is to foster the creation and dissemination of intellectual works for the public welfare . [a]nd the interests of authors must yield to the public welfare where they conflict.”) (quoting STAFF OF HOUSE COMM. ON THE JUDICIARY, 87TH CONG., REPORT OF THE REGISTER OF COPYRIGHTS ON THE GENERAL REVISION OF THE U.S. COPYRIGHT LAW 6 (Comm. Print 1961)). 10. See Hatch, supra note 9, at 721 (suggesting that similar to real property rights, copyrights are a “bundle of rights” that may not be applicable in every situation . copyrights apply only to expressions, not ideas); Susan Shoen- feld, The Applicability of Eleventh Amendment Immunity, 36 AM. U. L. REV. 163, 175 (1986) (opining that one may perceive copyright as a property right that results from the author’s creation of the work). See generally David Friedman, In Defense of Private Orderings: Comments on Julie Cohen’s “Copyright and the Jurisprudence of Self- Help,” 13 BERKELEY TECH. L.J. 1151, 1159 (1998) (comparing copyrights to property rights in that copyrights are good against the world, unlike a contract right that is only good against the contracting party). 11. See Hatch, supra note 9, at 723 (noting that another purpose of copyright law is to protect the creator’s rights to his works and on the same token, foster creativity); see also Kathleen Connolly Butler, Keeping the World Safe from Naked-Chicks-in-Art Refrigerator Magnets: The Plot to Control Art Images in the Public Domain through Copyrights in Photographic and Digital Reproductions, 21 HASTINGS COMM. & ENT. L.J. 55, 60 (1998) (listing the five copyrights afforded the author as: reproduction, adaptation, distribution, performance, and display of her work); Jo Dale Carothers, Protection of Intellectual Property on the World Wide Web: Is the Digital Millennium Copyright Act Sufficient?, 41 ARIZ. L. REV. 937, 953 n.163 (1999) (stating that one of the primary objectives of copyright law is to promote the creation of original works (citing 17 U.S.C. §§ 101 to 1101 (1994))). Summer 2000] Copyright Protection 3 Discoveries. .”12 The first U.S. copyright statute was passed in 1790, limiting protection to maps, charts, and books.13 Copyright law evolved in the 19th century to expand protection to include such works as photographs, which was a new technology at the time.14 As technology continued to develop, Congress again expanded the statute in 1909 and 1912 to protect works such as motion pictures—another new technology.15 The last major revision of the Copyright Act, in 1976, created the current U.S. copyright law.16 As it stands, copyright protection is offered for creative works of authors whose works are fixed in any tangible medium.17 The statute does not provide protection for titles, single words, short phrases or ideas, but it does protect the expression of those ideas.18 12. U.S. CONST. art. I., § 8, cl. 8. See Michael A. Forhan, Note, Tasani v. New York Times: The Write Stuff for Copy- right Law, 27 CAP. U.L. REV. 863, 866 (1999); see also Statute of Anne of 1710. 8 Anne, ch.

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