Re: Web Publishing: Which laws apply?

On Wed, 17 Feb 1999, Simon Minahan <sminahan[_at_]bigpond.com> wrote:
>
> On Mon, 15 Feb 1999, Paul Schaffner <pfs[_at_]umich.edu> writes:
> >
> > If a U.S. publisher sells access (via the web to a worldwide readership)
> > to e-texts of PD works, which laws is the publisher obliged to consider
> > when deciding whether the work is PD?
> >
> > 1. U.S. law only, under the principle of national treatment?
> > 2. The laws of the countries in which the works were originally
> > published (say, UK and Germany)?
> > 3. The laws of the countries in which it has paid subscribers to
> > its web distribution service?
> > 4. The laws of the countries in which it has affiliates or subsidiaries?
> >
> > I have always assumed no.1, but I would be glad to be corrected.
> > If this is a FAQ, my apologies: but I've been a subscriber for several
> > years now without noticing this precise question addressed.
>
> This is one of the true curly questions of the Web.
>
> IMHO it entirely depends on the jurisdiction of each audience
> country. If by their domestic laws they regard themselves as having
> jurisdiction over your activities, then (theoretically) you may not
> safely stop at no.1. Put another way, if the work is not PD in
> Crackestan and Crackestan law says your offering of the work for sale on
> the web, when viewed on a terminal in Crackestan, constitutes an action
> in Crackestan which makes you amenable to Crachestani law, then in their
> courts you may well be liable for infringing the local copyright. As I
> understand it, in the US there has already been some judicial treatment
> of this issue and your "long-arm" statutes and there it is taken as a
> sliding scale depending on the degree of interactivity of the site and
> assessing that as evidence of the requisite "presence"/intent to trade
> in a given State. Of course other countries apply different tests.
>
> The problem is rooted in the fact that historically copyright is a
> national protection, like an excise duty. The web obviously challenges
> that as the ultimate international distribution mechanism.
>
> If one assumes that US webpublisher is subject to foreign
> jurisdictions then there may be protection for the action as a member of
> a treaty country (that's too big a question for here) but strictly it is
> not a "licensed" use - since no one has the authority to licence it, and
> it partly will depend on parallel importation laws etc. of Crackestan.
> Up until recently the activity would have fallen foul in Australia, for
> instance, ISM if the work were not PD here. And, of course, there are
> non-convention countries to consider.
>
> This invites (at least) 2 further questions:
>
> 1. So what? Even if you are infringing in Crackestan, how are they
> going to enforce that against you in the US? On that score, avoid
> unscheduled stop overs and don't buy any property there. This is
> obviously more pertinent when affiliates and subsidiaries are concerned.
>
> 2. Shouldn't there be some radical reshaping of jurisdictional
> limits and concepts on an international level to adequately address the
> implications of this new scenario? (Duh, yep). What should it become?
> (Hmmm) How to enforce (probably via TRIPS type linking to trade).
>
> Sorry but I seem to have answered a question with 2 more

In circumstances where a closely related issue can be decided by agreement between parties, we have proposed that the criterion should be the location of the office controlling the server on which the material is stored, backed up (as with the copyright conventions) by a set of minimum standards to which all must adhere.

-- 
Edward Barrow
edward[_at_]plato32.demon.co.uk