1. International Intellectual Property Prof. Manheim Spring, 2007 Int’l IP “System” Copyright © 2007

2. Spring, 2007Int'l IP2 Basic Principles  National Laws Protect IP  Private Rights (enforceable by individuals)  Treaties  Public Rights  Oblige states to protect IP through national law  Minimum Substantive Standards  Non-Discrimination Principles  National Treatment  Most-Favored Nation These promote free trade

3. Spring, 2007Int'l IP3 Types of International Law  Customary International Law  Generally agreed principles, binds all nations  E.g., Territoriality, Nationality  Conventional International Law - Treaties  Binds only signatories  “Public” International Law  State-state relations (no private rights)  Non/self-executing as domestic law  Usually requires implementing legislation  Compare executive-legislative agreements in US

4. Spring, 2007Int'l IP4 TRIPs (1994)  Agreement on Trade-Related Aspects of Intellectual Property Rights link  Treats IP as element of Int’l Trade  Establishes minimum standards for national laws, upon accession to World Trade Org.  Supplements specific IP treaties

5. Spring, 2007Int'l IP5 Other IP Treaties  Copyright  Berne Convention for the Protection of Literary and Artistic Works (1886)  Universal Copyright Convention (1952)  Rome Convention (sound recordings) (1961)  WIPO Copyright Treaty (circumvention) (1996)  Regional  EU: Copyright Term Directive; Database Directive  CAFTA

6. Spring, 2007Int'l IP6 Other IP Treaties  Patent  Paris Convention (1883)  Patent Cooperation Treaty  European Patent Convention (EU only)  Trademark  Paris  Trademark Law Treaty  Madrid Agreement (US not a party)  Madrid Protocol (US a party)

7. Spring, 2007Int'l IP7 International Structures  WIPO (1967)  Administers Berne, Paris  WTO (1994)  Successor to GATT (1947)  Forum for policy-setting & dispute resolution  Regional  EU / APEC / NAFTA / CAFTA  Specialized  Treaty: ITU / WHO / UNESCO / FAO  Non-treaty: ICANN

8. Spring, 2007Int'l IP8 National Structures - US  International Trade Commission International Trade Commission  Advises Pres; administers US trade remedy laws  International Trade Administration (DoC) International Trade Administration  promotes exports of US goods and services.  Court of International Trade Court of International Trade  Art. III Court (replaced US Customs Court)  Hears trade protests, appeals of ITC decisions  Review by Ct. App. for Fed. Circuit  US Trade Representative US Trade Representative  Cabinet level rep. to trade talks

9. Spring, 2007Int'l IP9 Phil Collins v. Imtrat (ECJ 1993)  Procedural Posture  Reference to ECJ from Munich Regional Court  ECJ Decision directed to referring court  Facts  Collins has performance right (  ©) in UK  Imtrat markets Collins CDs in DE w/o consent  Question  Does Collins have right in DE?  If not, does DE violate EEC Treaty?

10. Spring, 2007Int'l IP10 Phil Collins v. Imtrat (ECJ 1993)  Does Collins have exclusive rights in DE?  DE law protects German nationals and performances occuring in Germany  Does special treatment for DE citizens violate EEC Treaty?  © is among economic rights protected by principle of non-discrimination  Compare Directive 92/100/EEC  Why decided under EEC Treaty, not Rome?  EEC Treaty is self-executing

11. Spring, 2007Int'l IP11 Most-Favored Nation Principle  TRIPs Art. 4  “ any advantage, favour, privilege or immunity granted by a Member to the nationals of any other country shall be accorded immediately and uncon- ditionally to the nationals of all other Members …” The golden rule  Problem 1-5  Can A (WTO) give more favorable treatment to B (non-WTO) than it does to C (WTO)?  What if the particular treatment (e.g., GMOs) is not otherwise required by TRIPs?

12. Spring, 2007Int'l IP12 Most-Favored Nation Principle  Relationship beween MFN and NT  NT: Can’t discriminate in favor of own nationals (internal)  MFN: Can’t discriminate in favor of any other country’s nationals (external)  Why MFN?  Might produce trade imbalances  Might preferential treatment be justified in the case of LDCs?

13. Spring, 2007Int'l IP13 Choice of Law  Basic Concept:  Assuming that a court in Country A (forum) has jurisdiction to resolve a dispute, does it apply the law of Country A, or of another country? “Conflicts of Laws”  “Whole Law”  A forum will apply its own “choice of law” principles in deciding whose law to apply  US Federalism  Erie doctrine is a specialized case of choice of law principles

14. Spring, 2007Int'l IP14 Itar-Tass v. R. Kurier (2d Cir 1998)  Facts:  Kurier copied articles appearing in Itar-Tass  Without permission  1st published in Russia (joined Berne in 1995)  Questions:  Is there a US © in the copied articles?  Who owns that ©?  Has the © been infringed?

15. Spring, 2007Int'l IP15 Itar-Tass v. R. Kurier (2d Cir 1998)  Is there a US © in the copied articles?  17 USC § 102(a): Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression  (b) The works specified by § 102 are subject to protection under this title if 102  (1) one or more of the authors is a national or domiciliary of the US or of a treaty party; or  (2) the work is first published in the United States or in a treaty party …

16. Spring, 2007Int'l IP16 Itar-Tass v. R. Kurier (2d Cir 1998)  Who owns that ©?  US law: 17 USC § 201(b): “ In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author …”  Russian Copyright Law, Art. 11(2): authors own the exclusive rights  Whose law (US/Russia) applies?  Whole law (choice of law principles) - federal common law (in absence of federal statute)  ALI: Restatement (2d) Conflicts of Laws

17. Spring, 2007Int'l IP17 Itar-Tass v. R. Kurier (2d Cir 1998)  General rule (from the Restatement):  Law of the state with most significant relationship  Factors  Russia is “country of origin” of works  Created by Russian nationals  Conclusion: Russian law applies  Itar-Tass has no ©; lacks standing [17 USC § 501(b)]17 USC § 501(b)  Dépeçage  Ownership: apply Russian law  Infringement: apply US law  Lex loci delicti (place where wrong occurred)

18. Spring, 2007Int'l IP18 Proof of Foreign Law  Old Rule  Question of fact, for trier of fact  New Rule - Rule 44.1, Fed. R. Civ. P.  “ A party who intends to raise an issue concerning the law of a foreign country shall give notice by pleadings or other reasonable written notice. The court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the Federal Rules of Evidence. The court's determination shall be treated as a ruling on a question of law. ”

19. Spring, 2007Int'l IP19 Itar-Tass v. R. Kurier (2d Cir 1998)  Was this case correctly decided?  Yes … if Itar-Tass was enforcing its Russian ©  No … if Itar-Tass was enforcing its US ©  Why should ownership of a US © be determined by Russian law instead of § 201(b) ?  Does applying Russian law to the US © violate the Territoriality principle?  Why should there be a US © (total of 163) for works published in Russia by Russian nationals?  National Treatment principle?  Easier to enforce in place of infringement