INFRINGEMENT AT THE SPEED OF CLICKS: UNPACKING JURISDICTION IN CROSS-BORDER COPYRIGHT INFRINGMENT IN THE DIGITAL ERA

As the digital era has progressed, instances of copyright infringement have become increasingly common. The principle of territoriality in intellectual property rights adds complexity to resolving cross-border copyright infringements, as it involves navigating a variety of laws and jurisdictions. Territoriality asserts that copyright laws typically apply only within the boundaries of the jurisdiction where they are enacted.

?However, in an era of global interconnectedness, copyright violations often extend beyond national borders, creating significant challenges in enforcement. While international treaties seek to harmonize copyright laws, discrepancies persist across jurisdictions. Countries remain divided on key issues such as “moral rights,” “fair use,” the length of copyright protection, data protection, rights over sound recordings, and, more recently, the circumvention of encryption technologies and the liability of internet service providers. Principles such as the national treatment principle as codified in the Berne Convention, the Paris Convention, and the TRIPS Agreement has been used as a non-discrimination tool, restricting a country’s ability to enact laws that treat domestic authors more favorably than foreign authors.

A central issue in cross-border online copyright infringement disputes is determining jurisdiction. In the absence of consistent conflict-of-law rules within private international law for intellectual property rights, national courts are responsible for deciding the legitimacy of claims and the scope of protection. This opens the door for ‘forum shopping,’ potentially harming the defendant and other users of the copyrighted content. Various methods, such as geo-blocking and targeted measures included in court orders—like IP address blocking, DNS website blocking, URL filtering, and other forms of blocking—have been implemented to restrict access to copyrighted works. However, these measures may not be the most effective, as they are relatively easy to bypass with available technological tools, despite such circumvention still constituting an infringement.

Different approaches have been advanced in attempting to address the jurisdictional issue on cross-border copyright infringement disputes.? For instance “where the damage occurs” rule has been advanced as a determinative factor on the jurisdiction of cross border copyright infringement. ?In Pez Hejduk v. EnergieAgentur (2015); the defendant company (EnergieAgentur) was based in Germany while the claimant, a professional photographer, lived in Austria. The defendant made photographs taken by the claimant available on its website for viewing and downloading, without permission. The claimant sued for copyright infringement in Austria. The Court of Justice of the European Union (CJEU) held that the Austrian court had jurisdiction, on the basis of the place where the alleged damage occurred, to hear an action for damages in respect of copyright infringement where the photographs were placed online on a website that could be accessed from Austria.

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Conclusion.

It is crucial to note that various strategies have been employed to tackle the problem of online cross-border copyright infringement. The principle of national treatment has been promoted as a means of ensuring equal and non-discriminatory protection for copyrighted works. Jurisdiction has equally been inferred to arise in the country of copyright registration or in the country where the allegedly infringing act occurs, with it raises concerns on recognition and enforcement of such a foreign judgment. ?

Ultimately, it is crucial to assess the practicality of establishing a uniform international copyright framework to tackle cross-border infringements. Is it feasible to have an international copyright registry index? is a key question. These complexities raise concerns to creators on considering global strategies to address cross border copyright violations.

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