An Alternative to Choice of Law in (First) Ownership of Copyright Cases:The Substantive Law Method

This article argues that national courts should move away from conventional choice-of-law methodology in cases relating to initial ownership of copyright. Traditionally, this area is the subject of a controversy between those arguing for application of the law of the country for which protection is sought (lex protectionis), and those advocating the law of the country of origin (lex originis). Contrary to what is often alleged, courts are free to choose a different approach, as neither the Berne Convention nor the principle of territoriality of copyright dictates any particular conflict rule for copyright ownership issues. On policy grounds, lex protectionis should not apply, because the fact that the copyright owner might change each time a work crosses an international border increases licensing costs, and hampers international commerce in copyrighted works. Although lex originis enables a single law to apply across the globe, this approach is also unsatisfactory, since there is no proper definition of “country of origin”, and courts might too often trigger the public policy exception or their overriding mandatory provisions to displace foreign law, thus destroying the claimed benefits of lex originis. Accepting the proposition that courts dealing with conflict problems are concerned with substantive outcomes, a result-oriented approach is more appropriate than the kind of neutral choice-of-law rules that European conflict scholars often defend. In deciding international copyright ownership disputes, national courts should consider developing global substantive rules accommodating the laws and policies of all systems (national and international) interested in the dispute. This approach, called the substantive law method, preserves as much as possible of the local and foreign rules, as well as the interests of the international copyright system. Should this method be adopted widely, it would yield more uniformity and certainty than can be guaranteed by orthodox conflict methodology.