Choice of Law in Ownership Issues
Copyright cases involving a foreign work are interesting because different issues of the case can require the courts to apply different countries copyright laws. One area where this can be an issue is when ownership of the copyrights is contested. The Second Circuit looked at this issue in the Itar-Tass Russian News Agency v. Russian Kurier, Inc. case. The Court felt the choice of law issue in copyright cases was largely overlooked and often not considered a serious aspect of a copyright case involving foreign works. This was largely because of the “national treatment” principle of the Berne Convention and the Universal Copyright Convention, (both of which the U.S. is a member) as explained in Nimmer’s treatise on Copyright. According to Nimmer this meant that a member state had to grant the same protection to foreign copyright holders from other member states as the state accords its own nationals. The Court in Itar-Tass decided that this doesn’t express how ownership of the rights is decided when the law of the foreign country differs from the U.S. Ultimately the Second Circuit decided that because copyright is a form of property the law of the state with the most significant relationship to the property and the parties should be applied. In the Itar-Tass case this meant the Second Circuit would have to apply the Russian laws regarding the ownership rights of the copyrighted work.
Is this decision really the best policy and does it follow the intention of the Berne Convention? Without knowing much about the Berne Convention’s intentions it seems to me to be an odd position for the Court to take. First off, such policy means U.S. courts could have to interpret the copyright law of other countries, surely a topic they do not have a lot of experience with. It also seems to imply that we would expect other countries to apply U.S. copyright law in certain instances. While that may be beneficial to a plaintiff from the U.S. suing in a foreign country you also find yourself in what I think is a questionable situation having a foreign court interpreting and applying U.S. copyright law.
The Berne Convention also seems to take the approach that the law of the country where the suit is being brought should be applied. In fact, it specifically lays out that in the case of cinematographic work, the ownership of a copyright should be a matter for legislation in the country where protection is claimed. The Second Circuit in Itar-Tass decided that this was not meant to apply to other areas of copyright law.
The decision to apply the law of the country with the most significant relationship could make sense if it was the general policy for all copyright cases involving foreign works, but the Court agrees that the “national treatment” principle is accurate for solving what law governs in other aspects of a copyright dispute. Thus the Court seems to acknowledge the intent of the Berne Convention to use the law of the country where protection is being sought; so as it treat foreign copyright holders the same as resident copyright holders in that jurisdiction; but it also ignores that principle when deciding ownership issues and allows the foreign copyright holder the ability to use their home state laws. This does not then treat the foreigners the same as nationals because now people in the U.S. have to understand how every other member country of the Berne Convention sets up the ownership aspect of their copyright laws; rather than knowing that when a foreigner seeks copyright protection in the U.S., U.S. copyright laws will apply in all instances. I don’t know why the Court took this position but it only seems to further complicate the already complicated issue of international copyright law.