Principles for Deciding
Hard Copyright Cases
The media have gone from
print to the internet. Works of the mind are more and more frequently enjoyed;
their creators, less and less recompensed. Hence our thought-experiment: Try
out the following ten principles on hard cases
proliferating in copyright law.[1]
In English, we speak of
“copyrights”; in most languages, of “authors’ rights.” With such rights,
lawmakers pursue aims that range from enhancing cultural wealth to empowering
flesh-and-blood creators.[2] Rather than opine on laws in the field of copyright
now embroiling us in hard cases, we shall start by asking: What scope ought
authors’ rights be given in such cases?[3]
Copyright laws first recognized authors’ rights to make their
works public in print or on stage.[4] With progress, more powerful media have been
dispersing cultural goods more and more widely and rapidly. Statutes assure
authors’ rights for such more or less specific media; treaties extend their
“umbrella” rights over communication and making available.[5] Here we venture the core right of dissemination for creators to control making their
works accessible to others or, absent control, to be paid for reception. But
what remedies of control and of payment may apply case by case, above all when
authors are themselves pitted against each other?[6]
Imagine a case of such tensions. From Hiroshige’s woodblock
prints, Van Gogh made studies in oil paint. Check out their landscapes: the Flowering
Plum Tree and the Bridge
in the Rain. Hypothesize that Hiroshige prepared his prints recently
and that Van Gogh painted his studies soon after. Copyright laws could differ
in resolving the issue: Should Hiroshige have the right to have Van Gogh quite
simply prohibited from reworking his woodblock prints into paintings?[7] The core right, delineated here, would entitle the
prior artist to determine whether, and to some extent how, his works reach
others. In such a right, Hiroshige would find no basis on which to have Van
Gogh compelled to cease privately painting studies of his prints. To begin
scoping out Hiroshige’s rights, ask: What may Van Gogh do with his studies
outside of his studio? Should he be free to show or sell exemplars on the open market or otherwise to
disseminate these works?[8]
Vary our case a moment. Suppose that, from woodblocks for
Hiroshige’s prints, a workshop he had not engaged, using his color schemes,
made further prints and sold them. This artist could today sue on his author’s
right to prevent the unauthorized publication of such routinely made exemplars,
often called “copies.”[9] Refocus on the different case just hypothesized: out
of Hiroshige’s prints, Van Gogh chose and wove features and patterns into his
own studies. From the prints to the studies, staged planes were articulated
into active strokes, colors were selectively shifted from muted to intense, and
mood was turned from contemplative to impassioned. Under our first principle
here, no law should entitle any author, in our case Hiroshige, to have another
summarily stopped from elaborating culture. Rather, a judge may decline to
prohibit a creator, here Van Gogh, from recasting another’s work or from
releasing any ensuing work to others. But under our third
and fourth principles, the prior author may be granted
other relief.[10]
Our core right, as do most laws on point,
protects a creative work whether or not it is fixed in any hard “copy.”[11] Consider a number of jazz
artists improvising music live in an unrecorded jam session, but with some at
times riffing solos by themselves. Contributions, here including tunes,
harmonies, and rhythms, attract copyright as they are creatively pulled
together into some more or less self-standing work.[12] Texts, as well as visual
or aural images, are then protected insofar as they make sense in contexts that
they furnish one another to form any such work.[13]
Performers find opportunities, for instance,
in playing scripts or scores, to give works fresh meanings. It might then prove
misleading to impose any dichotomy between authoring and performing any work.[14] In particular, actors,
musicians, directors, or other executants, amplifying on others’ works, give
these their own shadings, cadences, or other turns. Under our second principle
here, the jazz musicians in our foregoing example could be deemed authors, as
well as performers, to the extent that their own renditions more or less
together took on some overall tenor significantly different from those of prior
versions. Often using “creator” for “author” or “performer” or for both, we
shall not try to disentangle these overlapping notions in theory, but rather
ask: How to grant relief for varying contributions in practice?[15]
Industrial designs raise issues straddling
copyright and industrial property. Compare designs by Alvar
and Aino Aalto and by Charles
and Ray Eames. The Aaltos pioneered making chairs out of plywood pressed
into simple curves. The Eames developed chairs to be fabricated using
techniques for molding plywood into compound curves. How to protect such
creations that, widely recognized as original and beautiful, were shaped with
novel methods? Copyright protects matters like texts or images creatively
brought together into meaningful works; design or patent rights protect
innovatively useful products or processes.[16] Suppose that a
manufacturer, while following the configuration of one of the Eames’ designs,
improved on chairs like theirs with techniques for making them more sturdy.
What could occur in the marketplace for such products or processes if the Eames
asserted copyright in their design against this manufacturer for exploiting its
structurally improved chairs? In some cases of chairs resembling theirs, they
could constrain possibly competitive uses of techniques for making chairs. Such
control, under copyright laws, could typically be exercised more readily and
longer than under design or patent laws. Our second principle here precludes
protecting copyright in text or images or like forms that techniques suffice to
generate.[17]
How to distinguish creations from technical
implementations? Copyright is claimed in what we blithely call “expressions”
that we try to disentangle from “facts” or “ideas.” Materials that these
just-quoted weasel words encompass are protected only insofar as they are
creatively articulated into some work.[18] With authors’ rights, for
example, Gerard Manley Hopkins could control publishing his poems as worded, and
Georges Seurat could control showing others his Sunday on the Grande
Jatte as painted. But Hopkins could not have others stopped from
imparting their own poems written in sprung rhythm he drew from common speech;
nor Seurat bar others from showing their own pictures painted in the
pointillist mode he devised. Moreover, courts have refused to recognize
authors’ rights in products made with mere know-how, generated by automated
processes, or contrived with literary or artistic techniques.[19] So writers may promulgate
texts that they unfold out of styles, story lines, character types, etc., and
artists circulate images that they configure with compositional or color
schemes, etc. Under our second principle here, copyright ought not be enforced
in texts or images simulated by reprocessing creative works with routines,
including models or algorithms, alone.[20]
What
may courts do when a right might be or is violated? They may order parties not
to do certain acts or to do others, and they may award money. They have to
tailor remedies case by case by taking account of diverse variables, including
risks of harm, plaintiff’s compensable losses, or defendant’s illicit gains. We
shall now ask: Within such equitable parameters, what relief to fashion for
authors’ moral and economic rights in hard cases?[21]
Return to
our hypothetical case of Hiroshige’s prints “copied” in Van Gogh’s studies of the Flowering
Plum Tree and of the Bridge
in the Rain. Though artists
had long trained by emulating others’ exemplars, Van Gogh had “scruples of
conscience” that his studies approached “plagiarism.”[22] Indeed, how could we
appreciate Hiroshige’s graceful prints in muted shades if we knew them only
from Van Gogh’s striking studies in oil? We could miss or confuse these
artists’ accomplishments if we did not learn who had created the prints, and
who the studies, or if we were unable to access these works reliably. Copyright
laws variously recognize creators’ moral rights to be credited and to keep
their creations intact.[23]
We shall explore remedies for moral rights.
Start with the right to be named as creator, usually of a specific work. An
author, while free to release her work anonymously, may require such a
reference by name or pseudonym.[24] As seen at the outset
under our second principle, diverse creators might
contribute to a “work,” as defined in open-ended terms: they may call for
recognition as joint authors or as such performers, these in a group if appropriate.
References to creators can forestall harm risked from disseminating works
without proper attribution or in other such misleading guises. What if a work
or performance were released to the public with mistaken credit, or without any
credit at all, for authorship or performance? The creator may sue to have such
misreference stopped or corrected and to recover losses it caused or gains it
occasioned.[25]
A creator has the right to maintain the integrity
of her own work or performance. Suppose that a work were disseminated, for
example, in a routinely truncated or diluted form. If the work showed no trace
of significant change, neither any later creator’s claims nor the public’s
needs would have to be weighed.[26] Absent such concerns, a
judge may bar disseminating the work in its defective variant or at least order
hack distortions or cuts to be repaired. Beyond this rule of thumb, hard cases
abound, if only because what constitutes “integrity” may be appreciated
differently from diverse perspectives, from creators’ evolving insights to
swings of taste.[27] But consider this
historical case: Beaumarchais wrote the play which Mozart adapted into his
opera The
Marriage of Figaro, and Da Ponte rewrote the play into Italian for this
opera, with an eye to evading censorship. Our first principle
would preclude courts from barring dissemination of any such reworking without
taking account of its creativity. Under our sixth principle,
courts may also limit relief in hard cases of moral rights in order to avoid
impairing basic interests, in free expression.[28]
“A.I.” devices might lose references to
authors in inputting works and ignore the integrity of works in feeding
outputs. More generally, automated media threaten to swamp cyberspace with
algorithmically simulated texts and images.[29] Could or should courts or
online measures, as discussed under our tenth principle, provide
relief for any impairment of moral rights at stake here? Technologically, tests can distinguish “A.I.”-generated products from
humanly originated matters: even if fairly accurate, such tests would leave
issues open in hard cases.[30] To start, how could a
creator make any claim for any missing credit to her or for any marred
integrity of her work if “A.I.” outputs did not disseminate matters recognizably
from this work? Further, could individual authors invoke their private rights
to justify orders to apprise the public that ostensible works, not respectively
theirs, were algorithmically simulated? Finally, in such cases, to whom to
award, and how to measure, damages or restitution for resulting losses or
ensuing gains, notably in our attention economy?[31]
Creators devote training and talent to writing
texts and to making images in sight or sound. But they, or enterprises
acquiring their rights, risk having others free-ride on goods they provide the
public. After the advent of print, copyright was instituted to protect writers
or artists and publishers against losing markets to pirates who reset type or
plates quickly and sold reprints cheaply.[32] Upon advances like
recording and telecommunication, lawmakers enumerated rights to exploit works
by way of such media. Claimants may petition courts to enjoin infringement and
to award damages for losses or, absent which, the restitution of gains.[33]
Copyright infringement occurs, it is
submitted, as matters such as texts or images in a work, while conveying some
of its sense, are disseminated without due consent.[34] But to the extent that
another author creatively makes such matters over into another work, our first principle directs courts to allow her to disseminate
the ensuing work. Requested to issue any sweeping order to the contrary, courts
should distinguish between routine iterations and creative reworkings like
translations or transformations. Contrast a machine conversion of a commonplace
text into another language with a humanly insightful translation of a work as
rich, for example, as one of Mallarmé’s
poems. A judge ought not deny a creator the chance to amplify on culture by
contributing her rearticulation of a still-protected work, say, into another
language or form. But injunctions might often depend less on fine
discriminations, say, between more or less “creative” recastings, as turn on
more easily assessed factors. What if a rote or slavish “copy,” with nothing
but hack changes or clichéd twists, abridged or replicated claimant’s work?[35] A judge may prohibit
disseminating this reiteration if equitable criteria are met, crucially that of
averting imminent and irremediable prejudice. There would be good reason to
prevent any obvious substitute for a protected work from taking claimant’s
share of the marketplace. There would be less need to bar a distinctly reforged
work unlikely to usurp any such market.[36]
Monetary awards are available in copyright
suits.[37] To assess damages, courts
have to determine harms caused by infringement, typically losses incurred in
ascertainable markets. Apart from damages, a claimant, for example, one with
little prospect of success with her work, may recover such enrichment as has
been gained from infringement. Courts, sorting out such
matters as copyright protects in works at issue, should trace claimants’
compensable losses and infringers’ net gains as due from illicitly
disseminating protected matters.[38] Consider Dashiell
Hammett’s novel The Maltese
Falcon,
with its engaging plot and snappy dialogue, which John Huston rather literally
followed in his eponymous film. Hammett’s story took on new life in Huston’s
motion picture, thanks to creativity in directing actors, in shooting and
editing the film, and in otherwise putting the story on screen. Suppose, quite
hypothetically, that the studio making this motion picture had not first
contractually obtained rights to exploit the novel cinematically.[39] Under our fourth principle
here, the studio could, if it marketed the film without such consent, have
risked facing the novelist’s action to share in its gains. In such a suit,
infringement analysis would inform accounting estimates of how far the success
of a film should be imputed to the protected text.[40]
Much ink has been spilled, not least in
copyright analyses, in assaying “creativity” in literature and the arts.[41] The scope of protection
may well turn on this criterion, notably as a court declines to enjoin one work
creatively derived from another or as it assesses monetary awards for
infringement; however, there can be caveats for remedies. Suppose that a
claimant has translated a French work into English, while a user’s personal
computer, with widely available software, converts the French text into some
“English” close to claimant’s. If other users applied this software to the
French work, they could enjoy an “English text” like claimant’s, not only
without “copying” her translation, but in widespread instances hard to enjoin.[42] Markets for human
translations could then be undercut by machine conversions into other
languages, making it hard to gauge monetary losses as bases for relief for
illicit dissemination. Now switch to another hypothetical: myriad translations
by human authors are all reprocessed as they are fed into a device that
algorithmically simulates texts. But how to trace or assess, from specific
authors’ creative inputs into their own works, their respective losses as
resulting from outputs of the “A.I.” device? Or gains made from marketing
“texts” or “images” generated by the device?[43]
Users
of works incur transaction among other costs in seeking consent, and claimants
encounter diverse obstacles to enforcing copyright. In such and other
troublesome cases, copyright law may exempt some uses of works, courts may
allow equitable defenses against remedies, statutes may delimit the duration of
rights, and overriding laws may constrain relief. How to resolve hard cases
arguably subject to such exceptions or limitations?[44]
Critical, informational, or like uses of
works tend to feed creativity. What if no rightholder readily approved
redisseminating protected matters in such cases? For example, a humorist might find another author reluctant to allow him to
parody the other’s work. Or a scholar might not have the resources to solicit
multiple permissions to illustrate a book on art history for publication. Or a
reporter might not have time to license showing a painting hung in the
background of news soon to be aired. Or a teacher might not find it feasible to
confirm consent in advance for handing out texts to a class. Diverse copyright
laws allow most, if not all, of such redisseminations, but in varying
provisions. These we shall here try to rethink for all authors’ rights in terms
of common sense.[45]
Laws become unworkable when they fail to
tell us how to comply with them. Laypeople often cannot follow provisions that,
allowing uses in theory, are not cogent in practice. A key treaty provision
restricts copyright law on point to exempting “special cases” that do not
“conflict with a normal exploitation of the work” or that do not “unreasonably
prejudice the legitimate interests of the right holder.”[46] But most of us are not
expert enough, on the one hand, to foresee harms that our contemplated uses
might cause rightholders in dynamic markets or, on the other, to appreciate
legally protected interests put at risk by our uses. Our third
principle would entitle creators to require references to themselves; our fifth
principle here would preclude injunctions against, and damages for, the
reasonable redissemination of protected matters for critical, informational, or
like purposes. To make such defenses workable, courts should require users only
to consult common sense in complying with the condition of reasonable use.[47]
Note how this criterion shifts perspectives.
Our third and fourth principles set out criteria to guide a judge in fashioning
relief in a hard copyright case. But a
test of common sense, fit for any user, would not entail the judicial task of
weighing such equitable factors as harmful “effect” on any “potential market”
or some more or less creative, “transformative” use.[48] Rather, it opens the
inquiry: Would we, relying only on common sense, find the redissemination of
the protected matters at issue reasonable as a critical, informational, or like
use in the case at hand? For example, a scholar may keep quotes of texts or
images to sizes appropriate within her contexts, a journalist may fleetingly
convey a whole work in reporting on news, or a teacher may give a small class
access to samples of works. Suppose that such a party showed that, while duly
referencing any creator along with the work used, she met some critical,
informational, or like purpose in redisseminating this work. This party would
be liable for damages only insofar as her use exceeded what common sense would
find reasonable in the case.[49] However, compensation,
imposed by statute as equitable remuneration or judicially as restitution,
could be due.[50]
Authors’
economic rights run as long as treaties or statutes specify, while moral rights
may last longer under some laws. Whichever type of right may still be asserted,
courts may take the passage of time into account in appropriate cases.[51] Typically, a judge may hedge or even refuse remedies for an author’s
claims that, after her death, have waned in urgency with time. For example, in
a descendant’s suit on the moral rights of Victor Hugo, who had been dead over
a century, French courts declined to enjoin sequels to his classic Les
Misérables.[52]
Overriding
laws may limit how far authors’ rights allow for relief. Treaties,
constitutions, and related laws protect such basic interests as those in
privacy, in free expression, and in open information.[53] To assess risks of impairment to basic interests, higher courts may
review decisions by lower courts or enforcement by public or private agents,
especially measures restraining the release of works to the public.[54] To protect basic interests, notably in free expression, courts may, inter
alia, construe exceptions or other defenses broadly or fit relief to facts
closely.[55]
Decision-makers
often retain more or less discretion to adjust enforcement to situations at
hand. For example, a regional court gave a national administration only
guidelines for managing data to protect suspected infringers’ privacy.[56] A court of human rights, however, called on a State authority to
narrow its order blocking websites, at least by specifying “offending material”
to be removed on the sites.[57] At some point, however, in especially hard cases, courts may have no
choice but to refrain from enjoining the dissemination of works with arguably
creative changes to which authors object.[58] Under our tenth principle, we shall analyze
how copyright may be enforced online, even outside the purview of the courts,
but optimally within judicial parameters.[59]
Natural persons have authors’ rights arise in themselves as they
create works. They may share economic rights equitably in any work to which
they contribute together or with any principal. They may agree to have others
exploit their works, and the law may itself transfer rights. Who, ultimately,
would have rights in a work?[60]
Under
our first and second principles, flesh-and-blood
creators have authors’ rights in
protected matters they originate within a work. But many might collaborate, for
example, on a feature film or on a dictionary, notably as team members or on
staff. How to allocate copyright in any creation with multiple contributors,
who are often enough directed by an employer or other principal? The very fact
that a work emerged out of the parties’ diverse contributions and transactions,
whether creative or administrative, points to their consensus. Our seventh
principle here tempers rules of law that govern who may exercise rights in such
works. It allows courts to take account of the parties’ consensus in fashioning
relief.
Contrast
a work created by many authors on their own with a work made under someone
else’s direction. Suppose, on the one hand, an interactive game created by an ad
hoc team of globally networked contributors, but without any contract or
principal. Our seventh principle here would have courts equitably construe the
creators’ consensus in order to allocate their authors’ rights legally among
them. For example, their course of conduct or informal agreements, as well as
contract terms typically used in network circles, could inform effectuating
some approximately common intention.[61] Suppose, on the other hand, a collective work created for a principal,
like an employer or a commissioning party. But on hiring eventual contributors to
this work, did this principal have more bargaining power than they? If so, any
putative consensus, inferred into their engagement, may be equitably
reconstrued or reformed. For example, a judge could ask whether creators would
reasonably have agreed only to better terms.[62]
How
can creators earn their livings in rapidly evolving media markets? Receiving
payment, authors assign economic rights to others, or they license others more
or less exclusively to disseminate their works. But it is often hard to anticipate
how creations might be eventually exploited: among other things, they can be
elaborated into diverse works appealing to unexpected audiences, and media
progress opens up unforeseen markets. Contractual models out of the past are
not likely to have been appropriately formulated for future media: for example,
agreements to publish hard “copies” might have little relevance for streaming
works online.[63] It would be disingenuous to presume that creators always contracted
their rights away freely, without being pressured by enterprises economically
more powerful than they. How then to construe terms that, whether implicit in
consensus or express in contracts, purported to alienate copyrights? Did such
language warn creators of the full range of eventual benefits they were about
to give up? To the extent lacking free and knowing consent, overreaching
transfers may have to be cut back.[64]
Whether
acquired in willing deals or not, copyrights have long been bought and sold.
Over prior centuries, entire industries have emerged, starting in publishing
houses and going on to recording and film studios. Such enterprises, regularly
producing works and performances with creators on often-adhesive contracts or
on staff, accumulated copyright repertories. Many of these companies have since
shifted from production to extracting revenues from old works recirculated on
new media, and some have been taken over by financiers mining copyright assets
for capital.[65] Over time, authors, performers, and their agents, most notably royalty-collecting
societies, have been losing bargaining power, not only to production companies,
but to media platforms. It hardly seems to satisfy any copyright rationale to
channel money, whether made thanks to old or new contracts with creators, back
to enterprises that no longer or do not now participate in cultural
development. We may rather ask: How could creators, to support and cultivate
themselves, gain remuneration from the continued exploitation of their works
and performances, especially online?[66]
Under
our seventh principle, only a flesh-and-blood
creator of a work is vested with authors’ rights in the work. Another party needs
chain of title running from such creator or creators of a work up to and
including herself to assure any such right as she asserts in that work. What
if, at the start of such chain of title, no creator effectively consented to
cede her rights to anyone else? Suppose, as well, that no such right were
transferred by law to another party. By default, whoever created the work would
retain all rights in it.[67]
How
to extend chain of title to copyright, even across borders? One may transfer
economic rights by contract: under most laws, if the holder of an exclusive
right assigns it to one party and later to another, the first transfer in time
takes effect as against the other.[68] Caveats may come into play: for example, some laws allow one
transferee to prevail over another by giving notice, often by recording the
grant on some designated public register, but such local regimes are not
globally coordinated.[69] As well, transfers of copyright may be made by law, inter alia,
those effectuated in creative teams or employment, in marital communities or
inheritance, in corporate successions, etc. In any event, it would be prudent
to require a claimant, optimally one with adequate financial means, to warrant
title to all the copyright interests that this party purports to grant. To
start, pertinent transactions, even as checked with due diligence, could at
times fail to lock in sufficient chain of title worldwide. Further, no treaty
regime dictates which laws should govern transfers of copyrights respectively
effective in different countries. Finally, diverse laws, bearing on chain of
title across multiple borders, could conflict.[70]
Copyright
is supposed to induce authors to market their works openly. To function, the
marketplace needs data identifying who may give consent to exploit protected
matters. But gainful uses risk being made of such matters, or royalties
pocketed, by parties who erroneously claim chain of title to pertinent rights.[71] A creator may demand of anyone using her work for profit: Prove your
entitlement to make such use or else stop it or pay for it! Such challenges may
be especially called for in fields like music, where rights and use data are
often scrambled and revenues funneled through obscure plumbing.[72] Consider, by contrast, rightholders in dominant positions: they may
not frustrate the redissemination of protected matters by simply rebuffing
prospective licensees. For example, a court may disallow a rightholder’s
arbitrary refusal to negotiate licenses to redisseminate matters that it
controls in a market.[73] Posit another case: an author had assigned copyright in her work to a
publisher who reassigned this right to another party now absent from the
marketplace. Users of this “orphan” work, lacking information to find any
rightholder, could raise equitable defenses against relief for its use.[74]
Courts grant relief in orders that have to
be enforced. Copyright enforcement has gone from stopping illicit publications
or public stagings locally to filtering telecommunications more or less
globally. Which law or laws apply to works crossing borders? How to enforce
authors’ rights in growing networks?[75]
With media progress, works increasingly
cross borders.[76] We have ventured
principles for authors’ rights, while attempting to rethink notions that trip
us up in hard cases. Our principles may be tested by how well they guide
fashioning relief to resolve or defuse conflicts of copyright or like laws that
break out as infringement globalizes.[77] Faced with apparent
conflicts, a court may ask: Could enforcing laws applicable to the case at bar
achieve the aims motivating some of these laws but frustrate aims for others?
To the extent that such tensions are absent from the case, no true conflict of
laws complicates disposing of it. In some cases, converging or complementary
remedies may obviate troublesome conflicts.[78]
Hypothesize one more case: a mime, within
the United States, creatively improvised a pantomime work live. Suppose that,
without the mime’s consent, a member of the audience recorded her improvisation
and put the recording online.[79] The mime’s work was thus
made accessible worldwide, and she sued the party posting it, along with his
internet service, in a U.S. court. What if, parochially choosing only forum law
to govern the case, this court dismissed our mime’s copyright claims on finding
that she herself had never, pursuant to U.S. law, fixed her work or had it
fixed, say, in a score or video?[80] The court would thus
ignore most laws worldwide that, effective where the work at issue could be
received, would protect this work, as noted under our second principle, even if it were not fixed in any hard “copy.” Now suppose, varying
our case, that the U.S. court, taking our mime’s suit, were to hold that laws
abroad may be applied to her claims.[81]
Here we reach the issue on which
cross-border cases may turn: How to dispose of such conflicts as appear among
laws of copyright or authors’ rights of different jurisdictions? The
copyright-treaty regime, with its basic principle of national treatment,
entitles a qualified claimant to benefit from such law of any treaty country as
the basis of relief for infringement in that country.[82] The pertinent laws of such
countries may call for enjoining infringement that risks causing irremediable
prejudice in their respective audiences or markets and for awarding damages for
losses, or restitution of illicit gains, arising there. The treaty regime has
harmonized copyright in authors’ minimum rights that we encapsulated in our
core right to guide courts in hard cases.[83] In our case here, this
core right would support an order to constrain dissemination of our mime’s work
wherever it is protected and likely to be received. Monetary awards would
complement each other as they were granted under laws respectively in effect
where losses or gains took place. But courts might eccentrically take cases or
choose laws, and they may each exercise discretion in tailoring remedies. For
these and other reasons, lawyers are tempted to shop for the court most likely
to favor their clients.[84]
Our
principles frame criteria for providing authors with judicial remedies for
their rights. By parity of reasoning, they bear on enforcing other measures to
protect these rights, even self-help measures.[85] To dramatize issues, envisage the internet as the ultimate Rube Goldberg machine, feeding endless
data via myriad hubs to countless nodes for sundry uses. With such media, it
becomes easier to free-ride on creative works, often by infringing copyright;
inexorably, enforcement costs spike. Online intermediaries, channeling access,
have been drawn into the fray. Public authorities tend to acquiesce in this new
cyber-governance. But how, above all judicially, to keep it legitimate?[86]
Internet
services impose arcane contractual terms, coupled with esoteric programming, on
their users.[87] As explained under our sixth principle, courts often allow public agencies or even private enterprises leeway
to adjust relief in enforcing copyright. Online intermediaries’ contractual and
computerized control, seemingly legitimated by their discretion in enforcement,
could leave them with decision-making powers beyond case-by-case discretion,
thus with leverage exercisable against creators and users at large.[88] Recall Hiroshige’s Flowering Plum Tree and Bridge in the Rain recast into Van
Gogh’s studies: such creative
reworkings as these studies, under our first principle, should not be denied the public; however, close reiterations, likely
to wreak irremediable prejudice, may be thus barred. But will intermediaries,
with automated or like measures online, reliably filter out only such
enjoinable acts, while allowing access to creative recastings and to contents
critically or informationally used? Not necessarily; bureaucrats or businesses,
overseeing copyright in cyberspace on their own, need not have regard for
authors’ rights or for interests in free expression.[89]
Another
principle, from outside copyright law, comes into play in some hard cases. A
court exercises the State’s powers in civilly enforcing authors’ rights and,
more harshly, in criminally punishing infringers. Civil remedies risk becoming
punitive, for example, as monetary awards lose proportion with actual damages
or unjust enrichment. Pursuant to the principle of legality, the State has to
inform the members of the public, in statutory terms clearly cogent to us all,
of illicit acts with penal consequences.[90] How to respect this general principle of law in the special field of
copyright, which incorporates open-ended notions to dispose of endlessly
variable cases of protean creativity? In particular, uncertainties about what
constitutes copyright infringement could complicate defining any culpable state
of mind posited as requisite to many crimes. In some hard cases, courts may
construe any arguably punitive provision into plain language or, failing which,
find it too vague to apply.[91]
Now that
we have unpacked our principles, let us look at them all together. Click on
each principle set out immediately below to return to explanations offered for
it above.
The
mustachioed, not the bearded, Marx quipped: “Those are my principles; and, if
you don't like them, well, I’ve others.”[92] Our willingness to
reconsider our current premises differs perhaps from his. We have experimented
with notions key to authors’ rights at stake in hard cases. Will the foregoing
principles, as just listed, remain useful guides in such cases in the future?
Only if we constantly rethink the law to keep up with the media![93]
© Paul Edward Geller 1st April 2026
[1] For the initial version, see Paul Edward Geller, Beyond the Copyright Crisis: Principles for Change, Journal of the Copyright Society of the USA, vol. 55 (2008), 165. At points we may well ask: What if the copyright crisis just deepens, as more and more hard cases remain without adequate resolution?
[2] For critical analysis of distinct rationales for copyright law and for authors’ rights, see Paul Edward Geller, Toward an Overriding Norm in Copyright: Sign Wealth, Revue Internationale du Droit d'Auteur [R.I.D.A.], no. 159 (1994), 3 (with French and Spanish translations), drawn from the initial, longer essay: Must Copyright Be For Ever Caught Between Marketplace and Authorship Norms?, in Of Authors and Origins: Essays on Copyright, eds. Brad Sherman and Alain Strowel (Oxford University Press, 1994), 159.
[3] Hard cases typically arise as generally termed norms are applied to peculiar facts. See Aristotle, Nicomachean Ethics, trans. Robert C. Bartlett and Susan D. Collins (University of Chicago Press, 2011), bk. 5, ch. 10, at 112. Copyright laws might leave authors without recourse when the media change rapidly. But see Immanuel Kant, Of the Injustice of Counterfeiting Books, translating: Von der Unrechtmäßigkeit des Büchernachdrucks, Berlinische Monatschrift, 1785, 403. The philosopher here implies that principles, even absent positive law on point, may support judicial relief in some cases.
[4] For analysis of the emergence of copyright and authors’ rights, see Paul Edward Geller, Copyright History and the Future: What's Culture Got to Do With It?, Journal of the Copyright Society of the USA, vol. 47 (2000), 209, at 210-35.
[5] See WIPO Copyright Treaty (1996),
art. 8; WIPO Performances and
Phonograms Treaty (1996), arts. 10 and 14. See, e.g., Society
of Composers, Authors and Music Publishers of Canada v. Entertainment Software
Association, 2022 SCC 30, esp. paras. 8, 86, and 108. The Supreme Court of
Canada here confirmed that dissemination may “engage” statutory rights, while
it construed such rights, some couched in terms of distinct media, to avoid
“gaps in protection.”
[6] For critical analysis of tensions in theory underlying such disputes endemic in practice, see Paul Edward Geller, Delimiting Intellectual Property: Distinct Approaches to Spillovers, in Spory o własność intelektualną: Księga jubileuszowa dedykowana Profesorom Januszowi Barcie i Ryszardowi Markiewiczowi, eds. Andrzej Matlak and Sybilla Stanisławska-Kloc (Wolters Kluwer Polska, 2013), 293.
[7] See, e.g., U.S. Copyright Act, 17 U.S. Code § 106(2) (Dec. 2024); the German Urheberrechtsgesetz (in English translation), § 23(2) (Oct. 23, 2024). U.S. law grants the right “to prepare [emphasis added] derivative works based upon the copyrighted work”; German law limits such control to the public production of certain derivative works.
[8] For prior analysis of this and like cases,
see Paul Edward Geller, Hiroshige
v. Van Gogh: Resolving the Dilemma
of Copyright Scope in Remedying Infringement, Journal of the Copyright Society of the USA, vol. 46 (1998), 39.
[9] Why do we put scare-quotes around the term “copies”? This vague notion risks misleading us: for example, a translation is not literally a “copy” in that its words differ from those of the work which it reinterprets into another language. For another analysis, see Abraham Drassinower, Copyright is Not About Copying, Harvard Law Review Forum, vol. 125 (2012), 108.
[10] Under these principles, we shall explore
remedies that an initial author may seek for the release of a further author’s
work, for example, a translation or transformation, derived from that prior
author’s work and disseminated without due consent.
[11] Few laws condition the protection of authors’ rights on “fixing” works in some stable or tangible medium. For analysis, see Ysolde Gendreau, Le critère de fixation en droit d’auteur, Revue Internationale du Droit d'Auteur [R.I.D.A.], no. 159 (1994), 111 (with English and Spanish translations).
[12] See, e.g., Tempo Music, Inc. v. Famous Music Corp., 838 F. Supp. 162 (S.D.N.Y. 1994). Here a U.S. trial court declined to deny copyright in Billy Strayhorn’s contributions of harmonic aspects to a work on which he collaborated with Duke Ellington. Our seventh principle treats the consensual allocation of rights in works created by many authors.
[13] For analysis of any work as some relatively self-standing sign in which texts, images, etc., contextualize one another, see Paul Edward Geller, Toward an Overriding Norm in Copyright: Sign Wealth, Revue Internationale du Droit d'Auteur [R.I.D.A.], no. 159 (1994), 3, at 51-59. For analysis of how other sets of texts, outside a work, might bear on its meanings, see Michael Riffaterre, Intertextuality vs. Hypertextuality, New Literary History, vol. 25 (1994), 779.
[14] It remains theoretically controversial, though variable in practice, how fully a script or score, indeed any such “writing,” can set out a work once and for all or, rather, a performance reinterpret or even redevise the work. For diverging analyses in the field of music, see Nelson Goodman, Languages of Art: An Approach to a Theory of Symbols (Bobbs-Merrill Co., 1968), 179-92 passim; Philip Alperson, On Musical Improvisation, Journal of Aesthetics and Art Criticism, vol. 43 (1984), 17.
[15] See our third and fourth principles. For other analyses, see Richard Arnold (Justice), Reflections on The Triumph of Music: Copyrights and Performers’ Rights in Music, Oxford I.P. Seminar, Oct. 20, 2009 (Intellectual Property Institute, 2010); Rebecca Tushnet, Performance Anxiety: Copyright Embodied and Disembodied, Journal of the Copyright Society of the USA, vol. 60 (2013), 209.
[16] For analysis of interfaces between copyright
and industrial property, including design and patent rights, see Jerome H.
Reichman, Legal
Hybrids Between the Patent and Copyright Paradigms, Columbia Law Review, vol. 94 (1994), 2432.
[17] See, e.g., Baker v. Selden, 101 U.S. 99, 100-02 (1879). The U.S. Supreme Court here refused to enforce copyright in accounting forms following a “plan” of “ruled lines and headings.” The Court reasoned that no such right may justify barring uses of this plan, declaring rather that the case fell into “the province of letters-patent, not of copyright.”
[18] For analyses, see Paul Edward Geller, Copyright in Factual Compilations: U.S. Supreme Court Decides the Feist Case, International Review of Industrial Property and Copyright Law [I.I.C.], vol. 22 (1991), 802; Pamela Samuelson, Reconceptualizing Copyright's Merger Doctrine, Journal of the Copyright Society of the USA, vol. 63 (2016), 417.
[19] See, e.g., Bsiri-Barbir c. sté. Haarmann et Reimer, Cass., 1e ch. civ., no. 02-44.718, June 13, 2006, translated in [2006] European Copyright and Design Reports [E.C.D.R.] 380; Telstra Corporation Pty. Ltd. v. Phone Directories Company Pty. Ltd., [2010] FCAFC 149, esp. paras. 89-92; Gray v. Hudson, 28 F.4th 87, 97-102 (9th Cir. 2022). In the first case, the French Supreme Court denied any author’s right in “the fragrance of a perfume” attained by implementing “know-how.” In the second case cited, the Full Federal Court of Australia refused copyright in telephone directories “overwhelmingly” compiled by “automated processes.” In the third, a U.S. appellate court accorded none in music insofar as comprised of a common “ostinato” used in a “conventional arrangement.”
[20] As broached in closing our third and fourth principles,
computers are used to reprocess works. But see Ilia Shumailov, et
al., AI models
collapse when trained on recursively generated data, Nature, no. 631 (2024), 755. Tinkering, like feeding outputs of
“A.I.” devices as inputs back into these devices, risks sapping residual
creativity or cohesion in outputs.
[21] For examples of how hard cases at times prompt courts to take account of overriding laws as parameters for relief, see our sixth principle. For an overview of consequences for online enforcement, see our tenth principle.
[22] Letter of February 1, 1890 (no. 850), in Vincent van Gogh, The Letters, eds. Leo Jansen, et al. (Van Gogh Museum and Huygens Institute, 2009). He also wrote here of “translating” other artists and of his fear of their “bothering or obstructing me under the pretext that I’m manufacturing copies.”
[23] Other rights, not falling under copyright, may also come into play here, albeit with differences in subject-matters and scopes. The right to privacy, for example, entitles anyone to restrain disclosures of her personal expression, whether it is creative or not. For the classic analysis, see Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, Harvard Law Review, vol. 4 (1890), 193, at 198-213 passim.
[24] See Berne Convention (Paris, 1971), art. 6bis; WIPO Performances and Phonograms Treaty (1996), art. 5. Our fifth principle tracks Berne articles 10 and 10bis in allowing certain uses of a work on the condition of reference to its “source,” above all to the author unless she is anonymous.
[25] Evidence supporting such awards, for example,
of harm to reputation, can be hard to marshal, prompting recourse to relief
calling for less onerous showings. See,
e.g., Agence
France Presse v. Morel, No. 1:2010-cv-02730 (S.D.N.Y. Aug. 13, 2014). A
U.S. trial court here awarded statutory damages under special provisions
prohibiting the removal of identifying data.
[26] See, e.g., the Serafino decision, Tribunale, Rome, May 30, 1984, Diritto di Autore, vol. 56 (1985), 68, reversed in part, Germi c. Soc. Reteitalia, Corte d’Appello, Rome, Oct. 16, 1989, Foro Italiano, vol. 112 I (1989), 3201. An Italian court of first instance enjoined “spot” advertisements to prevent these from breaking up a film work as it was televised. But this court contemplated adjusting relief, for example, timing ad-breaks to keep the plot of the work relatively intact. On appeal here, the intermediate court simply banned such breaks.
[27] See, e.g., Société Turner Entertainment Co. c. Huston, Cour d’appel, Versailles, chs. civ. réunies, Dec. 19, 1994, R.I.D.A., no. 164 (1995), 389, as translated in: Entertainment Law Reporter, vol. 16, no. 10 (1995), 3. Here the French intermediate court disallowed the colorized version of a film noir as impairing its integrity. Was this alteration as routine as filling in a coloring book or, under our first principle, creative enough to resist having its dissemination enjoined?
[28] But see Serra v. U.S. General Services Admin., 847 F.2d 1045 (2d Cir. 1988). In this case, a sculptor created The Tilted Arc for a common space, but people frequenting the space wanted it removed. Here the U.S. appellate court, acknowledging “that the sculpture is site-specific and may lose its artistic value if relocated,” still allowed the work to be moved to another spot.
[29] Issues of authenticity, rather than of moral rights, seem to arise here. See Dan L. Burk, Cheap Creativity and What it Will Do, Georgia Law Review, vol. 57 (2023), 1669.
[30] For further analysis, see Darius Afchar, Gabriel Meseguer-Brocal, and Romain Hennequin, AI-Generated Music Detection and its Challenges, in IEEE International Conference on Acoustics, Speech and Signal Processing (2025), 1.
[31] For another analysis, see Enrico Bonadio, Nicola Lucchi, and Giuseppe Mazziotti, Will Technology-Aided Creativity Force Us to Rethink Copyright’s Fundamentals? Highlights from the Platform Economy and Artificial Intelligence, International Review of Industrial Property and Copyright Law [I.I.C.], vol. 53 (2022), 1174, esp. 1184-86.
[32] Note the exhaustion doctrine: Tangible property, once relinquished, say, on the first sale of a hard “copy,” may be freely alienated. But see, e.g., Land Nordrhein-Westfalen v. Dirk Renckhoff, C.J.E.U., 2nd ch., Case C-161/17, Aug. 7, 2018, ECLI:EU:C:2018:634. The E.U. Court of Justice here held that, after an author allowed access to a work on one website, he could control reposting the work on another site.
[33] What if protected matters, or losses or gains from infringement, cannot be clearly ascertained? See, e.g., VMG Salsoul v. Ciccone, 824 F.3d 871 (9th Cir. 2016). The U.S. appellate court here refused relief for marketing recordings that included de minimis samples from claimant’s performances.
[34] See, e.g., Authors Guild v. Google, Inc., 804 F.3d 202, 225-27 (2d Cir. 2015). A U.S. appellate court here held that copyright in the “expressive content” of works need not be infringed by a search engine posting snippets from them online. By the same token, copyright might not be violated by the release to the public of any taking of such decontextualized, and to that extent unprotected, matters. It remains unclear how far “A.I.” devices break textual inputs down into words, isolated from specific contexts, only to assemble these into outputs according to common usages. For another analysis, see Oren Bracha, The Work of Copyright in the Age of Machine Production, Harvard Journal of Law & Technology, vol. 38 (2024), 171.
[35] See, e.g., Folsom v. Marsh, 9 Fed. Cas. 342 (C.C.D. Mass 1841); Dickens v. Lee, (1844) 8 Jurist 183 (Ch), reported in E.T. Jaques, Charles Dickens in Chancery (Longmans, Green and Co., 1914), 67-70, 84-89. In the first case, U.S. Justice Story, “riding circuit,” enjoined the publication of some of Washington’s collected letters in a verbatim selection. In the second case, a U.K. court of equity, pending trial, enjoined the “piracy” of Dickens’ Christmas Carol in a cheaply published rewrite in which no significant change was found. For further analysis, see Mark Rose, Dickens v. Lee (1844): A Christmas Tale of Two Experts Testifying, Cardozo Arts and Entertainment Law Journal, vol. 41 (2023), 227.
[36] See eBay Inc. v. MercExchange, 547 U.S. 388, 393 (2006), citing Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578, n. 10 (1994). Here the U.S. Supreme Court stressed equitable criteria for issuing injunctions in cases of intellectual property, invoking the argument in its earlier opinion, which it cited, that “the goals of the copyright law [...] are not always best served by automatically granting injunctive relief” and that in some cases “the copyright owner's interest may be adequately protected by an award [...] for whatever infringement is found.”
[37] For diversely critical analyses, see Wendy J. Gordon, Of Harms and Benefits: Torts, Restitution, and Intellectual Property, Journal of Legal Studies, vol. 21 (1992), 449; Paul Edward Geller, Opening Dialogue on Intellectual Property, in Juriste sans frontières: Mélanges Ejan Mackaay, ed. Stéphane Rousseau (Thémis, 2015), 341, esp. 370-80.
[38] See, e.g., Bucklew v. Hawkins, Ash, Baptie & Co., 329 F.3d 923 (7th Cir. 2003). A U.S. appellate court here traced, notably from “novel twists” in forms, both losses and gains, but sought to avoid “double counting” in awards by disentangling claimant’s damages from infringer’s profits.
[39] See Warner Brothers Pictures, Inc. v. Columbia Broadcasting System, Inc., 216 F.2d 945 (9th Cir. 1954), cert. denied, 348 U.S. 971 (1955). A U.S. appellate court here allowed Hammett to take the main character of The Maltese Falcon into sequels, even after he transferred rights in his novel. Our seventh principle favors restrictively construing such agreements.
[40] See, e.g., Sheldon v. Metro-Goldwyn Pictures Corp., 106 F.2d 45, 51 (2d Cir. 1939), affirmed, 309 U.S. 390 (1940). A U.S. appellate court here held that plaintiff may share in defendant’s gains imputable to filming and showing what was protected in plaintiff’s play. But the court held that costs of defendant’s contributions to the success of its film, such as “the actors, the scenery, the producers, the directors and the general overhead,” may be factored out of awardable gains.
[41] For illustrative analysis of conceptions of “creativity” in flux, see Umberto Eco, Innovation and Repetition: Between Modern and Postmodern Aesthetics, Daedalus, vol. 134, no. 4 (2005), 191. For critical analysis of legal commentary on point, see Julie E. Cohen, Creativity and Culture in Copyright Theory, U.C. Davis Law Review, vol. 40 (2007), 1151.
[42] It may prove easier to enjoin a centralized service than scattered users. See, e.g., Shanghai Character License Administrative Co., Ltd. v. AI Company, Guangzhou Internet Court, Feb. 8, 2024, Yue 0192 Min Chu No. 113 (unofficial translation, just linked, by Yanzhao Zhen). A Chinese court here ordered the online provider of “A.I.”-produced images, infringing copyright, to keep them offline and to warn users.
[43] See, e.g., Andersen v. Stability AI Ltd., No. 3:23-cv-00201-WHO (N.D. Cal. Aug. 12, 2024); Paul Lehrman v. Lovo, Inc., No. 1:24-cv-3770 (JPO) (S.D.N.Y. July 10, 2025). These U.S. trial courts also held claims for “unjust enrichment,” arguably by “unfair competition,” to be preempted. Compare Getty Images (US), Inc. v. Stability AI Ltd., [2025] EWHC 109 (Ch), with GEMA v. Open AI, LG Munich I, 42nd Civil Ch., 42 O 14139/24, Nov. 11, 2025. The U.K. court here found “reproduction” insufficiently particularized in data streams. The German court upheld named authors’ claims for their works identifiably released from “A.I.” devices to the public.
[44] On the one hand, our first principle disfavors enjoining any derivative work creatively drawn from the work at issue. On the other hand, our second principle distinguishes and coordinates rights at the interfaces between copyright and industrial property. We presuppose both analyses as we here consider defenses and limits to copyright and authors’ rights.
[45] Notions like “exceptions” or “limitations” vary in meanings. The law may differ in delineating the scope of rights, for example, in carving exceptions out of that scope or in drawing parameters for judicial discretion to fashion more or less stringent relief. Note that, under this fifth principle, the core right still extends to gainful but infringing uses insofar as exceptions leave restitution available to claimants.
[46] Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), art. 13 (1994, as part of the Agreement Creating the W.T.O.). The criteria set out in this treaty provision posit desiderata for public legislation. They hardly seem formulated to govern private parties’ decisions.
[47] Article 10(1) of the Berne Convention allows “quotations from a work [...] lawfully made available to the public, provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose [...]”: such uses may be construed to include many exempted here. For another analysis, see Tanya Aplin and Lionel Bently, Displacing the Dominance of the Three-Step Test: The Role of Global Mandatory Fair Use, in The Cambridge Handbook of Copyright Limitations and Exceptions, eds. Shyamkrishna Balganesh, Ng-Loy Wee Loon, and Haochen Sun (Cambridge University Press, 2021), 37.
[48] For other analyses, see David Nimmer, “Fairest of them All” and Other Fairy Tales of Fair Use, Law and Contemporary Problems, vol. 66 (2003), 263; Richard Epstein, Sequential Uses of Copyrighted Materials: Transforming Transformative Use Doctrine in Andy Warhol Foundation v. Goldsmith, Michigan State Law Review, vol. 2022 (2023), 1041.
[49] If common sense falters in hard cases, our sixth principle may justify limiting remedies to avoid
impairing basic interests. See, e.g.,
Tom
Jensen v. Edvard Eriksens Arvinger, Højesteret, Case no. BS-24506/2022-HJR,
May 17, 2023, translated in [2023]
E.C.D.R. 417. The Supreme Court of Denmark denied relief in cases of images of
the sculpture of the Little Mermaid
with her face twisted or hidden for critical purposes. Though these distortions
may have been excused in parodies, the Court also invoked the basic interest in
free expression to allow them.
[50] See, e.g., the Eidgenössische Technische Hochschule Zürich decision, ATF 140 III 616, Nov. 28, 2014, esp. 625-29. The Swiss Federal Tribunal here allowed a public service to send articles to private parties, without regard for their purposes, but subject to remunerating rightholders.
[51] For another analysis, see Justin Hughes, Fair Use Across Time, U.C.L.A. Law Review, vol. 50 (2003), 775.
[52] Plon S.A. c. Pierre Hugo, Cass., 1e ch. civ., no. 04-15.543, Jan. 30, 2007, R.I.D.A., no. 212 (2007), 249, followed, Cour d’appel, Paris, 4e ch., Dec. 19, 2008, R.I.D.A., no. 220 (2009), 444. The French Supreme Court overturned a decision which, barring the sequels, put “creative freedom” at risk while failing to specify how the sequels led to “confusion” about authorship of the old work at issue; on remand, relief was refused.
[53] For a global analysis, see Laurence R. Helfer, Human Rights
and Intellectual Property: Mapping an Evolving and Contested Relationship,
in The Oxford Handbook of Intellectual Property Law, eds. Rochelle C.
Dreyfuss and Justine Pila (Oxford University Press, 2018), 117.
[54] See, e.g., Ashby Donald v. France, Eur. Ct. H.R., 5th sect., Jan. 10, 2013, App. nos. 36769/08. Here the European Court of Human Rights accepted to review, but did not find excessive, fines and awards which a French court imposed on photographers for publicly releasing photos taken at fashion shows without consent from the body administering the shows.
[55] See, e.g., the Germania
3 decision, BVerfG, 1 BvR 825/98, June 29, 2000, GRUR 2001, 149. The
German Constitutional Court, on grounds of “artistic freedom,” stretched the
copyright exception for excerpts to allow a work featuring a “collage” of large
“quotes” by Brecht to be published. For
analysis, see Paul Edward Geller, A German
Approach to Fair Use: Test Cases for TRIPs Criteria for Copyright Limitations?,
Journal of the Copyright Society of the USA, vol. 57 (2010),
553, at 557-60.
[56] La Quadrature du Net v. Premier ministre, C.J.E.U., Full Court, Case C‑470/21, April 30, 2024, esp. paras. 113-19, ECLI:EU:C:2024:370. Here the E.U. Court of Justice tried to “balance” privacy and other “fundamental rights” in criteria for collecting, storing, and using personal data for purposes of overseeing copyright uses, to wit, file-sharing.
[57] Flavus v. Russia, Eur. Ct. H.R., 3rd sect., June 23, 2020, App. nos. 12468/15, et al. Here the European Court of Human Rights reasoned that, thus notified, claimants could know what to remove from the sites or more closely challenge the order, allowing them to minimize impairment of basic interests.
[58] See,
e.g., Opéra de
Munich c. Gilles Bernanos, Cass., 1e ch.
civ., nos. 15-28.467 and 16-11.759, June 22, 2017, Juris-Data no. 2017-012338. Here the French Supreme Court, after
weighing treaty-assured “creative freedom” against authors’ moral rights,
overturned a decision barring the dissemination of an opera in a staging which
retained the writer’s text and composer’s music, but modified the authors’
final scene.
[59] Concluding this principle, we shall distinguish criteria for granting civil relief from those for imposing penal sanctions.
[60] This issue may be distinguished from: Who has standing to sue? See Paul Edward Geller, International Copyright: The Introduction, § 6[2][a], in International Copyright Law and Practice, ed. Lionel Bently (LexisNexis, 2018).
[61] See Axel Metzger, Transnational Law for Transnational Communities: The Emergence of a Lex Mercatoria (or Lex Informatica) for International Creative Communities, Journal of Intellectual Property, Information Technology and Electronic Commerce Law [JIPITEC], vol. 3 (2012), 361.
[62] For theory, see Paul Edward Geller, Preassignments of Creators’ Rights: An Adhesion Analysis, COMM/ENT, A Journal of Communications and Entertainment Law, vol. 2 (1979), 1. For practice, see Orly Lobel, The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property, Texas Law Review, vol. 93 (2015), 789.
[63] For specific analysis of one such shift, see Ruth Towse, Dealing with digital: the economic organisation of streamed music, Media, Culture & Society, vol. 42 (2020), 1461.
[64] See, e.g., F.B.T. Productions, LLC v. Aftermath Records, 621 F.3d 958 (9th Cir. 2010), cert. denied, 131 S. Ct. 1677 (2011). A U.S. appellate court here confirmed a higher royalty for licensing downloads as distinct from selling records. See also European Copyright Society, Addressing Selected Aspects of the Implementation of Articles 18 to 22 of the Directive (EU) 2019/790 on Copyright in the Digital Single Market, Journal of Intellectual Property, Information Technology and Electronic Commerce Law [JIPITEC], vol. 11 (2020), 132. This comment broadly construes the E.U. principle of “appropriate and proportionate remuneration” for creators.
[65] For further analyses, see Andrew deWaard, Financialized Hollywood: Institutional Investment, Venture Capital, and Private Equity in the Film and Television Industry, Journal of Cinema and Media Studies, vol. 59 (2020), 54; Patryk Galuszka and Tomasz Legiedz, Financialization of Music: Song Management Firms and Fractionalized Copyright, Information, Communication & Society, vol. 27 (2024), 1.
[66] For sample analyses, see Centre National de la Musique, Étude relative à l’impact du passage à l’UCPS par les services de musique en ligne (Jan. 2021); Shuwen Qu, David Hesmondhalgh, and Jian Xiao, Music streaming platforms and self-releasing musicians: the case of China, Information, Communication & Society, vol. 26 (2023), 699.
[67] Statutes may preclude transfers of certain rights. See, e.g., the Verlegeranteil decision, BGH, I ZR 198/13, April 21, 2016, GRUR 2016, 596, translated in I.I.C., vol. 48 (2017), 98. The German Federal Court barred a collecting society from diverting inalienable authors’ royalties to publishers.
[68] See, e.g., Griggs Group Ltd. v. Evans, [2004] EWHC 1088 (Ch), affirmed, Griggs Group v. Raben Footwear, [2005] EWCA Civ 11. In this case, an author granted a first party copyrights respectively effective at home and abroad and later purportedly assigned such rights to a second party who had notice of the prior transfer. A U.K. court of equity enforced the transfer of domestic and foreign copyrights to the first party as against the second, citing British and foreign rules on point.
[69] For analysis of U.S. recordation regimes in international contexts, see Raymond T. Nimmer and Lorin Brennan, Modernizing Secured Financing Law for International Information Financing: A Conceptual Framework, Houston Business and Tax Journal, vol. 6 (2005), 1.
[70] For analysis of such conflicts of laws, see
Paul Edward Geller, International
Copyright: The Introduction, §§ 6[2][b]-[c] and 6[3], in International Copyright Law and Practice,
ed. Lionel Bently (LexisNexis, 2018).
[71] See,
e.g., United
States of America v. Jose Teran, Government’s Sentencing Memorandum, No.
CR-21-0955-PHX-DLR (D. Az., June 21, 2023). A U.S. court charged defendant with
diverting royalties to himself by fraudulently claiming copyright ownership of
about 50,000 works online.
[72] For further analyses, see Berklee Institute for Creative Entrepreneurship, Fair Music: Transparency and Payment Flows in the Music Industry (2015), esp. 10-23; Derek Sellin and Timo Seppälä, Digital music industry – background synthesis, ETLA Working Papers, No. 48 (The Research Institute of the Finnish Economy, 2017).
[73] See, e.g., the Magill decision, Radio Telefis Eireann (RTE) and Independent Television Publications Ltd. (ITP) v. Commission of the European Communities, E.C.J., Joined Cases C-241/91 P and C-242/91 P, April 6, 1995, paras. 47-58 and 90-101, ECLI:EU:C:1995:98. The European Court of Justice here confirmed that television stations, dominating a specific marketplace, had to license a television-guide service to publish their program listings on reasonable terms.
[74] For another analysis, see Tun-Jen Chiang, Trolls and Orphans, Boston University Law Review, vol. 96 (2016), 691, esp. 708. Arguably, estoppel or another such defense could preclude at least injunctive relief against posting works online that copyright holders have left unavailable, for example, by taking “back-listed” works off the market.
[75] At national and network interstices, distinct regimes might not always mesh well. Our ninth principle outlines a regime for resolving conflicts of copyright laws arising in cross-border infringement. Our last, tenth principle guides enforcing copyright in networks that increasingly cross borders.
[76] Under our eighth principle, we broached conflicts of laws applicable to transfers of such copyrights as are effective in different countries. For analysis of “pan-E.U.” rights, at times muddling conflicts and transfer issues, see Mireille M. M. van Eechoud, Territoriality and the Quest for a Unitary Copyright Title, International Review of Industrial Property and Copyright Law [I.I.C.], vol. 55 (2024), 66, esp. 70-76.
[77] How to reconcile,
on the one hand, overriding laws protecting interests in privacy, free
expression, or open information, as broached under
our sixth
principle, and, on the other, applicable copyright laws, themselves in conflict?
For analysis, see Paul Edward Geller, The Celestial Jam
Session: Creative Sharing Online Caught in Conflicts of Copyright Laws,
European Intellectual Property Review
[E.I.P.R.], vol. 37 (2015), 490.
[78] For guidelines, see Paul Edward Geller, How to Practice Copyright Law Internationally in Perplexing Times, Journal of the Copyright Society of the USA, vol. 60 (2013), 167, esp. 182-99; Paul Edward Geller, International Copyright: The Introduction, §§ 1[3][c] and 3[1], in International Copyright Law and Practice, ed. Lionel Bently (LexisNexis, 2018).
[79] Our hypothetical here varies a scene in Diva, the film
Jean-Jacques Beineix directed (1981). In the film, a “bootleg” recording is
made of the live performance of an operatic aria but only to be
played privately. Our case of the mime differs in that it has the work at issue
released to the public, even across borders, triggering foreign laws.
[80] See U.S. Copyright Act, 17 U.S. Code §§ 101 and 102(a) (Dec. 2024). This law requires an “embodiment in a copy or phonorecord” that, made “by or under the authority of the author,” can “be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”
[81] See, e.g., London Film Productions Ltd. v. Intercontinental Communications, Inc., 580 F. Supp. 47 (S.D.N.Y. 1984); Levitin v. Sony Music Entertainment, 101 F. Supp. 3d 376 (S.D.N.Y. 2015). In the earlier case, at a time when the United States did not belong to the Berne Union, a U.S. trial court took jurisdiction over a suit for infringement abroad and, invoking Berne provisions, contemplated applying foreign copyright laws to such infringement. In the later case, with local uses licensed, a U.S. trial court took on a suit to apply foreign copyright laws to infringement abroad.
[82] See Berne Convention (Paris, 1971), art. 5(1). If the work at issue is protected by treaty, this provision assures its author of national rights, bolstered by minimum rights, in treaty countries “other than the country of origin” of the work. For purposes of choosing laws, infringement may be provisionally localized in any country in which dissemination might or does culminate, that is, in which resulting losses are threatened or suffered or ensuing gains made in local audiences or markets. For critical analysis, see Paul Edward Geller, International Intellectual Property, Conflicts of Laws, and Internet Remedies, Journal of Intellectual Property Rights (NISCAIR), vol. 10 (2005), 133.
[83] The treaty regime has harmonized copyright laws by formulating minimum rights in open-ended notions. See Paul Edward Geller, Legal Transplants in International Copyright: Some Questions of Method, U.C.L.A. Pacific Basin Law Journal, vol. 13 (1994), 199. In the forgoing principles, we have tried to define our core right in terms of remedies.
[84] For another analysis of ensuing uncertainties, see Marketa Trimble, The Territorial Discrepancy Between Intellectual Property Rights Infringement Claims and Remedies, Lewis & Clark Law Review, vol. 23 (2019), 501.
[85] See, e.g., Stevens v. K.K. Sony Computer Entertainment, [2005] HCA 58, paras. 45-47. The Australian High Court declined to enforce technical measures that prevented users from changing how they played computer games. The court sought “to avoid” extending “the copyright monopoly rather than match it,” especially given the “penal character” of the statutory regime, which was later amended.
[86] For further analyses, see Luca Belli and Cristiana Sappa, The Intermediary Conundrum: Cyber-Regulators, Cyber-Police or Both, Journal of Intellectual Property, Information Technology and Electronic Commerce Law [JIPITEC], vol. 8 (2017), 183; Maayan Perel, Digital Remedies, Berkeley Technology Law Journal, vol. 35 (2020), 1.
[87] For examples, see Xiyin Tang, Privatizing Copyright, Michigan Law Review, vol. 121 (2023), 753; João Pedro Quintais, Giovanni De Gregorio, João C. Magalhãesc, How platforms govern users’ copyright-protected content: Exploring the power of private ordering and its implications, Computer Law & Security Review, vol. 48 (2023), 1.
[88] See, e.g., UPC Telekabel Wien GmbH v. Constantin Film Verleih GmbH, Case C-314/12, 4th Ch., March 27, 2014, esp. paras. 46 et seq., CLI:EU:C:2014:192. Here the E.U. Court of Justice allowed an online service discretion to adjust its website-blocking measures if these were “strictly targeted” at infringing contents. But it muddled any such criterion, developed to take human rights into account, by considering sundry other factors, like technical feasibility. This it did by invoking E.U. law, notably the “principle of proportionality.”
[89] It remains unclear which courts may review
remedial measures with impacts across borders. Under our ninth principle, we raised issues
of jurisdiction over cross-border cases in which conflicts of copyright laws
arise.
[90] For a specific analysis, see Laura Tammenlehto, Copyright and Trademark Crimes in the Nordic Countries: Analysis from the Perspective of the Principle of Legality, Bergen Journal of Criminal Law and Criminal Justice, vol. 8 (2020), 18.
[91] Where a State is to extradite a party for criminal prosecution abroad, it may have to specify predicate acts in home law. See, e.g., Ortmann v. United States of America, [2020] NZSC 120. The Supreme Court of New Zealand here found locally illicit acts to allow extraditing file-sharing suspects.
[92] For more of such Marxist surrealism, more on
point, see Groucho Marx, On
copyright and Warner Brothers (1946).
[93] For a realist analysis of how “trouble-cases” can put law into question, see Karl N. Llewellyn, The Normative, the Legal, and the Law-Jobs: The Problem of Juristic Method, Yale Law Journal, vol. 49 (1940), 1355, at 1359-67 passim.
