Interlegal Issues and Copyrights

10/11/2005

By Arta Maryke Silalahi Nuth, S.H., LL.M., MICTL.

I.     Background

As a result of advances in computer technology, Internet has become a major information and communication source for millions of businesses and individuals. The explosive growth of Internet computer services has created an entirely new means of communication that was unknown to most individuals only a decade ago. The Internet is able to facilitate the free flow of ideas and the creation of a pool of shared knowledge and information. The Internet has dramatically increased the possibilities to access, exploit and retrieve works and other subject matter across national borders. However, this is not without risk. The fact that the works are available in the Internet and accessible from many countries will increase the possible simultaneous exploitation of works and other subject matter in different countries and under different legal systems, and together with it the possibility of multiple infringements. This condition is clearly opposed to the copyright law regime, which is designed to protect the authors’ right in the dissemination of their works and to prevent the works from flowing freely.

The principal questions apply to such trans-national acts of exploitation will be: (1) which court has jurisdiction to examine the case, and (2) assuming the court is properly exercising jurisdiction in the matter, what system of law shall the court apply or which law of the involved countries applicable to the case, and (3) should the party fail to enforce court judgment, what remedies or enforcement measures can be taken. These questions are particularly relevant in the area of intellectual property due to the different degree of protection granted in different countries and the territorial character of copyright protection. Despite the existing minimum standards of protection in international agreements, national copyright rules continue to differ considerably.

II.    Jurisdiction

The rules governing the jurisdiction and choice of law usually go under private international law of a court where the case is submitted. Given that private international law is actually part of country’s national laws, it is not surprising that private international law differs from one country to another country. Consequently, there may be different approaches to the above mentioned questions depending on the private international law of the countries concerned. However, in some countries which are members of international treaties such as Brussels Convention of 1968 and Lugano Convention of 1988 (both on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters), a harmonised set of rules in solving the jurisdictional problem is applied. These Conventions set out the circumstances in which courts will exercise jurisdiction. It is also provided under the Conventions that judgments given by courts with proper jurisdiction shall be enforceable in other signatory countries, subject to very limited exception. Pursuant to articles 2(1) and 5(1) of the Brussels Convention, a defendant may be sued respectively in the state where the defendant domiciles and in the courts where the performance of the obligations in question took place. Article 13 of the Brussels Convention provides a possibility for a vendor to file a suit in the country of domicile of the consumer when certain requirements are met.

Indonesia has different approach to the question of jurisdiction of the court. Indonesia is not a party to any of the Conventions mentioned above. In addition, Indonesia does not have any bilateral treaty/agreement on those matters with any state. The court usually declares that it has jurisdiction on the case based on (i) nationality of the defendant, (ii) domicile of the plaintiff and/or defendant, and (iii) in the case of the property, the location of the property.

III.   Choice of Law

It is important to see the relation between the question of jurisdiction and question of choice of law. The law suits for copyright infringement usually seek jurisdiction in where the infringement has occurred or where the defendant is located. If so, the potential applicable laws will usually be limited.

The question of choice of law in Europe is dealt under some international treaties that provide set of principles in relation to the choice of law. These treaties include: Hague Convention of 1955 on the Law Applicable to the International Sale of Goods and Rome Convention of 1980 on the Law Applicable to Contractual Obligations. In a more global level there is United Nations Convention of 1980 on Contracts in the International Sale of Goods. Needless to say, this UN Convention allows the parties to exclude its application and provides possibility for the parties to use the choice of law as regulated under the regime of private international law.

When a country is not a party to these international treaties such as Indonesia, the question of choice of law is once again dealt by the private international law of that particular country. Unfortunately, there is no provision in Indonesian private international law that specifically deals with question of choice of law in copyrights cases. Under Indonesian laws, parties to a contract are free to choose the law governing their contract and Indonesian courts are expected to respect such choice of law. The practice, however, proves to be different. From time to time Indonesian courts have applied Indonesian laws notwithstanding the choice of foreign law in the relevant contract. It is interesting to note that the courts never specifically and explicitly declare the choice of law in the contract to be invalid. Reflecting from this experience, it is not surprising if cases involving different nationalities where no pre-determined choice of law in their contract will be examined under Indonesian laws once submitted to Indonesian courts.

The oldest choice of law regime is the principle of lex loci delicti. This choice of law regime is centred on the law of the place of wrong, which is associated to the last event necessary to make an actor liable. The location of such event is ordinarily the state where injury occurs. Applied to the infringement of copyright on the Internet, there are many arguments on what constitutes place of wrong. Some argued that the place of wrong in the infringement over the Internet is actually the computer network and not a discrete nation. The second group argues that the place of wrong is where a nation is located. Since the Internet has made it possible for one object or protected works to be viewed or printed in many different countries at the same time, multiple infringements may happen simultaneously in many different countries. In such situations, the place of wrong will be each of the nations where the copyrighted works are reproduced on computers without authorisation. For example: when somebody without any authorisation reproduced a protective works, and such work can be viewed, printed or reproduced on computers in ten different nations, the place of wrong is each of the ten nations. Another location-centred view suggests that the place of wrong is the location of the server. This will lead to the situation as described previously where the place of wrong may be a number of countries. The fact that copyright infringements happen in many countries may encourage forum shopping for the reason that people have the possibility to choose in which particular country the protection will be claimed (and together with it which particular law that shall apply to the case).

IV.   Enforcement

As many nations do offer widely different levels of protection, the question of which national law will be applied in an international action for enforcement of intellectual property rights is an important one. If choice of law operates such that significant intellectual property rights cannot be adequately enforced, incentives for production may be harmed. While applying the incentives-access paradigm requires a balancing of the consumer\'s need for access and the author\'s need for incentives, the widely different levels of protection granted by different nations create an environment in which evasion of protective laws is particularly likely to occur.

Article 31 of the Brussels Convention provides “A judgment given in a Contracting State and enforceable in that State shall be enforced in another Contracting State when, on the application of any interested party, it has been declared enforceable there.” This provision ensures that court judgments made in the territory of one contracting state will be recognised and enforceable in other contracting states.

Although Indonesian courts consider the choice of foreign law chosen by the party in the contract to be valid and binding, the final judgment rendered by a foreign court will not be recognised by Indonesian courts because, as mentioned above, Indonesia is not a party to any of Brussels or Lugano Conventions and no bilateral treaty on the execution of foreign judgments exists between Indonesia with any countries. However, in any court proceedings in Indonesia, a judgment of foreign court could be submitted as evidence relating to the law of that particular country. As such, it is naturally up to Indonesian courts to give any evidentiary weight to such evidence.

The trans-national enforcement of copyright has been the concern of many international organisations including World Trade Organisation (“WTO”). With the increase of global trade of copyrighted materials and the advent of Internet, this topic has become, for the first time, the subject of an international treaty regime under the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS Agreement”). All the WTO agreements, with a couple of exception, apply to all WTO members including Indonesia. The members each accepted all the agreements as a single package with a single signature. The TRIPS Agreement is part of that package and consequently applies to all WTO members.

Articles 41-61 of the TRIPS agreement provide for minimum levels of enforcement that must be available in WTO member countries for them to meet their WTO obligations and avoid possible trade sanctions under the WTO\'s dispute settlement regime. A key feature of the TRIPS Agreement is the requirement for WTO members to have enforcement procedures that “permit effective action against any act of infringement of intellectual property rights” covered by the TRIPS Agreement (article 41.1).

V.    Conclusion

There is no such thing like international copyright that applies to whole countries. Intellectual property rights including copyright are territorial in nature. Copyrights are protected in individual countries and sometimes on a regional basis but not worldwide. Private international law addresses the problems that arise from the territoriality of legal systems. Where a case is involving foreign element, private international law will attribute jurisdiction to particular courts, determine applicable law and facilitate the recognition and enforcement of foreign judgment. International conventions, treaties or agreements on relevant matter provide more certainty and predictability in dealing with the issues on jurisdiction, choice of law as well as recognition and enforcement of certain rights.

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