Jurisdiction: Building Confidence in a Borderless Medium
July 26-27, 1999
Montreal, Canada
Appendix I: International Copyright Infringements In Cyberspace: A Conflict-of-laws Analysis
Kazunori Ishiguro
Professor Of Law
The University Of Tokyo
Faculty Of Law
Paper submitted to Session F-1 of the SOFTIC Symposium on a Balance
between Protection and Exploitation of Digital Content, held in Tokyo:
November 13-14, 1997
People tend to say, especially since the beginning of the commercial use of
the Internet[1], that legal problems in
cyberspace are quite different from those in the real world[2]. Sometimes, those who have such “feelings" even
say that traditional legal frameworks, including that of "conflict of laws"
and the principle of territoriality based on the regime of international
copyright conventions, should give way to the new system of cyber
laws[3]. P.E.Geller, the co-speaker of
Session F-1, is among the people who believe in the need of such
revolutionary ideas, and says that the functional analysis and/or the
principles of preference, some of the features of the so-called U.S.
revolutions in conflict of laws, especially in the choice-of-law process,
should be followed in solving cross-border copyright problems in
cyberspace[4].
However, one must scrutinize whether there is a real need of a new
system, and whether the new rules for cyberspace developed so far by the
revolutionists are well-founded, reasonable and practical for everyday use
in court proceedings. At first sight, it seems to be the proper way to
follow such radical views which might be called as “legal impressionism",
but that may end in an impasse, as evidenced in the U.S. choice-of-law
revolutions since 1963[5].
Apart from methodological questions, there are not a few cross-border
problems which should be solved on the level of conflict of laws, including,
but not limited to, choice-of-law and jurisdictional problems. The
recognition and enforcement of cross-border injunctions[6] is one of the major topics in cyberspace. A
worldwide injunctive order as seen in the U.S. case of Stack v.
Microsoft[7], if rendered in the GII (Global
Information Infrastructure) context, may have a chilling effect on the
further development of information superhighway[8]. The U.S. “PLAYMEN" case[9] should be analyzed by the same token, according
to the view of the present author.
This paper is composed of three Parts. Part I will address the
above-mentioned trend of “rethinking international copyright" and review the
alleged need of a new system and, and at the same time, call some attention
to the present stage of the U.S. revolutions on conflict of laws. Part II
will point out some of the major conflict-of-laws problems in cyberspace
which lie beyond methodological problems treated in Part I, taking into
account various proposals which have been put forward by academic writers,
and analyze them from a Japanese perspective. Part III is the conclusion.
Ginsburg states that the GII “erodes (if it does not completely undermine)
[one of the] premise[s] of the private international law of copyright",
namely the premise that “international infringements will occur
sporadically, and seriatim, as works move relatively slowly from one Berne
member [country] to another". She also states that “[t]he principle of
territoriality becomes problematic if it means that posting a work on the
GII calls into play the laws of every country in which the work may be
received when ... these laws may differ substantively[10]."
However, the problems posed by this challenge to conflict of laws
(private international law) should be viewed, as Fentiman[11] correctly notes, not as the difference in
kind, but as that in degree. Phenomena similar to those in digital world
can be found, inter alia, in international product liability and
cross-border pollution cases, if victims are scattered in various
countries[12]. According to Ginsburg, even
applying the law of only one country seems to be “daunting" in digital
world[13], but that depends on the posture
of a forum country on “the proof of foreign law", a problem slightly touched
by Fentiman[14], which differs greatly
between common law countries and civil law (European continental)
countries[15]. Application of a foreign
law is the very prerequisite to conflict of laws, and that cannot and should
not be got around. Ginsburg notes further: “[O]n the GII, there will be no
physical territoriality. ... Without physical territoriality, can legal
territoriality persist?[16]" However, this
remark is far from persuasive to the present author.
Similar problems lie in the argument of Burnstein's Notes. He states as
follows: “Traditional notions of jurisdiction are outdated in a world
divided not into nations, states ... but networks .... Well-known
jurisdictional doctrines such as “purposeful availment" lose meaning in
cyberspace. ... The networked world is different and requires a different
approach.[17]" On the one hand, in the
so-called “unified approach to choice of law in transnational
cyberspace"[18], he states: “Cyberspace
confounds notions of place and location. ... Place or location mean little
or nothing when it comes to cyberspace ...."[19]. On the other hand, he moves back, by
so-called “conceptual analogies", to the traditional conflict-of-laws
approach to the “two-ship collisions" in high seas[20], also suggesting a solution rather within the
framework of the conventional notion of party autonomy in conflict of
laws[21]. Following such steps, and
fearing the problems of “flags of convenience in cyberspace"[22], he finally suggests the role, in cyberspace,
of “the Law Merchant" and the need of a multilateral choice-of-law
treaty[23], an old-fashioned escape
sometimes used in a conventional conflicts analysis, too.
However, apart from the undeniable impression that Burnstein seems to
walk up and down between the two - the conventional and the new -
regimes[24], it should be always kept in
one's mind that damages are felt in the real world, not in cyberspace. In
other words, damages which will be remedied by a legal proceeding must be
suffered in the real world, not merely in the virtual world, though details
depend on the individual legal system concerned. The distinction between
the real world and cyberspace, in the argument of Burnstein, does not
successfully explain the need of a new conflict-of-laws system.
One must be cautious in understanding the meaning of the “conventional"
conflict of laws, at least when one is going to analyse the arguments of the
U.S. authors, because in the U.S., since 1963[25], the so-called revolutionary theories on
conflict of laws, especially on choice of law, have been adopted by the U.S.
courts. This point is not clear in Burnstein"s argument, but Geller
distinguishes between “categorical", namely the traditional (Savigny-type)
conflict-of-laws system, adopted in principle in European countries
including U.K. and also in Japan, and the revolutionary one.
Geller argues that "to respond to the shift from geographical space to
cyberspace, courts may have to move from categorical to functional
analysis[26]". The main advocate of the
functional analysis is Arthur T. von Mehren[27], but curiously enough, his name is not
directly referred to by Geller in introducing “functional analysis"[28]. In another article published later, Geller
uses the word "functional choice-of-law analysis"[29]. Therefore, it might be possible that he uses
the word “functional analysis" in a different meaning from that of von
Mehren's theory.
However, one must be very cautious of the point that, if von Mehren's
theory is meant by Geller, the outcome of the hypothetical case of Buster
Keaton's classic film work The General, loaded into a database and put
on-line[30], will perhaps be different from
that of Geller. In the said hypothetical case, a media enterprise
headquartered in the U.S. colorizes the film work and makes this version
accessible in digital format through a trans-Atlantic network; end-users in
France and Germany can order the work through the network; in the U.S.,
copyright in this work has lapsed; in France, moral rights protect it, but
not economic rights; in Germany, all rights in it still subsist[31]. Geller argues that, if "Keaton's successors
in interest sue the enterprise in the U.S., asking the court to enjoin it
from making this work accessible from the U.S.", the U.S. court "may apply
the laws of France or Germany to protect the work in these other
countries.[32]"
Although Geller simply notes that "there are no longer any rights in the
U.S."[33], the crucial point must be,
according to the functional analysis established by von Mehren, policy
implications of the laws of relevant countries, including that of the U.S..
The fact that, in the U.S., copyright in the work has lapsed means that it
is definitely in the public domain. If it is the policy statement of the
U.S. law that the work shall not be the object of exclusive rights any more,
that should be weighed against the conflicting policies of French and German
laws. Perhaps according to other revolutionary theories in the U.S. as
well, including that of Brainerd Currie[34], the governmental interest or policy
implication of the U.S. law in the said hypothetical case will not so simply
be disregarded as seen in Geller's argument, as far as the present author
understands.
Similar problems can be found in his arguments on "principles of
preference". On the one hand, referring to the theory of David F. Cavers,
he admits that the principles of preference have rather narrow reach,
“leaving ample room for independent judgment to any courts that resorted to
them[35]". On the other hand, concerning
preliminary measures, he states as follows: "The principle of preference for
the most effectively protective law, in such a situation [namely, copyright
infringements in digital networks], could allow the court to base the
preliminary injunction on any law under which the work at issue is protected
in any of these countries served by the network[36]". One should be allowed to ask whether there
is ample room left for independent judgment to any courts that resorted to
this principle, and further ask whether Geller's principles of preference
are quite different in nature from that of Cavers[37].
The reason why Geller suggests such a principle for provisional measures
is that "[i]t is extremely cumbersome to seek preliminary remedies on the
basis of multiple laws[38]". In other
words, "a procedural difficulty at the threshold of a legal action[39]" is the main reason for his argument.
However, it is a bit questionable to the present author whether his argument
is well-founded.
Furthermore, Geller argues that, after the issuance of preliminary
measures, "counsel [of each party] and the court have the time to explore
more differentiated solutions in the light of all possibly applicable laws",
but he only suggests several possibilities thereupon[40]. The threshold of Geller's arguments is
correct in that he states: "The Berne principle of national treatment will
... continue to require the choice of the law of the country where
protection is sought. It implies ... the application of the law effective
where remedies take effect[41]." However,
if Geller's above-mentioned suggestions are the very meaning of "the
dissolution of territoriality[42]", the
present author cannot follow them. On the one hand, there will occur cases
where it is far from easy to find out the most protective copyright
law[43]. On the other hand, one should
also take into account the fact that “although the effect of ... enjoining
infringing acts is formally temporary, the reality is that such [provisional
or interim] relief frequently puts a permanent end to such acts[44]". Geller's argument is clearly on the side of
"authors and media enterprises" who fear that otherwise “their copyrights
might be ... washed away through the electronic sieve[45], but seems to be a bit one-sided.
The U.S. revolutions on conflict of laws themselves seem to be in a great
impasse. The use of prisoner's dilemma in this context[46] is not so helpful, according to the
understanding of the present author[47].
However, here in the course of the present discussion, it is rather doubtful
whether the same revolutions are going on in cyberspace as those in the real
world.
According to the traditional understanding, the law applicable to
international copyright infringements is the law of the country in which
protection is sought[53], more precisely,
the law of the place of infringement (the lex protectionis)[54]. The multiplicity of such a law is the
threshold of the problems in cyberspace.
The Green Paper of the EC Commission is of the opinion that "the
applicable law ought to be the law of the Member State from which the
service originates" (the country-of-origin rule or the rule of the lex
originis)[55]." The solution proposed
there is the same as in the Satellite and Cable Directive[56], and is seen as a divergence from the
traditional principle of territoriality[57].
However, various questions have been correctly raised about the solution
of the Green Paper and/or the Satellite and Cable Directive. Firstly, as
Fentiman states: It is a "return" to "the old idea", namely "a return to an
era before the Berne Convention". He also states: [T]he place of
origination is likely to be the right-holder's local law, certainly if the
right-holder is, say, an on-line publisher. It allows such local
right-holders to vindicate their rights conveniently, and under a single
law, as against infringers in numerous jurisdictions. It removes any need
to proceed in each infringer's jurisdiction under a different law in each
case. ... But the case for substituting the lex protectionis with the new
lex originis is ... problematic[58]."
Secondly, as Geller states, while the rule of the lex originis "seems to
be formally simple and clear, it cannot be applied with certainty in
digitally generated networks where transmitting and receiving computers,
scattered and even moving among myriad countries, can interactively change
roles with ease[59]." Thirdly, as Ginsburg
states, "if the approach is extended to the whole world, ... pirates will
seek to upload from the least protective country possible." In other words,
the prerequisite to the rule of the lex originis is the "establishment of a
common level of protection" among the member countries of the EU[60]. And, at the same time, "instituting
safe-guard rules to forestall such maneuvers could lead to a potentially
complex set of exceptions that would swallow up the rule itself[61]", and would run counter to the principle of
national treatment under the Berne Convention, if the case is covered by
that. Fourthly, there will remain problems of recognizing and enforcing a
judgment rendered in the country of origin in other countries concerned,
including those of the places of multiple infringements[62]. These difficulties will be posed by the lack
of a treaty system like Brussels Convention, the territorial coverage of
which was enlarged by the Lugano Convention, which ensures the recognition
and enforcement of foreign judgments among the member countries[63]. Therefore, the rule of the lex originis
would not always meet the need of simplicity on the side of right-holders
sufficiently. They may have to proceed in each country of the place of
infringements in order to enforce a judgment which they obtain, except in
cases where they seek only money judgments and the defendants have
sufficient assets within the territory of the rendering country[64].
Criticizing, on the one hand, the rule of the lex originis, Ginsburg, on
the other hand, proposes a rule similar to that for cases of infringements
alleged to occur in multiple territories. According to her proposal: The
law of the forum country is applicable, “if that country is also either the
country from which the infringing act or acts originated; or the country in
which the defendant resides or of which it is a national or domiciliary; or
the country in which the defendant maintains an effective business
establishment[65]".
Although, considering some nexus, she seeks to avoid the "excesses" of
forum shopping in formulating the rule[66],
it is a bit doubtful for the present author to follow that. Most of the
problems posed with regard to the rule of the lex originis seem to remain in
the first part of her rule. It depends on the details of each case whether
nationality, domicile, residence or an “effective" business establishment of
a defendant in the forum country is a sufficient nexus in determining the
applicable law. Furthermore, suppose a case in which, even if an infringing
act of one of the defendants is originated from the forum country, other
defendants also infringe the rights of the plaintiff in other countries,
namely a case of multiple defendants scattered in various countries. Is the
forum law applicable to claims against all defendants? If the answer is
affirmative, Ginsburg's rule might be seen as somewhat too rigid. If the
applicable law is split from defendant to defendant, that outcome should be
viewed as "daunting", too, according to her basic concerns[67].
As Fentiman correctly states, "[i]n important ways the conflicts
principles involved [here] are no different from those in the non-digital
world", and the lex loci delicti, in the present context the lex
protectionis, should be applied to infringements in cyberspace as
well[68]. "In reality - as might be
expected - no one approach is likely to introduce stability, and secure the
protection of legitimate rights, in a world where the disadvantages of legal
diversity may be seriously increased." “[W]idespread harmonisation" is
perhaps the only way to override the practical difficulties, although one
should "keep an open mind as to the success of that strategy[69]".
For example, the following are ordered in Stac v. Microsoft: “Defendants
are hereby [permanently] enjoined and restrained from making, using, or
selling the Enjoined Products, and from causing any Enjoined Products to be
made, used, or sold, or otherwise directly or indirectly infringing in any
manner Stac's U.S. Patent.... [and] ordered immediately: ... to take all
necessary and reasonable steps to recall, erase, or have destroyed, all
Enjoined Products, worldwide, that have not yet been sold to end users;
...[72]." That is a typical example of a
"worldwide injunction".
In addition to the jurisdictional problems which will be discussed later
in this paper, a serious question of applicable law is posed here. In Stac
v. Microsoft, the activities of the defendants in other countries were
ordered by the court based on the infringement of the U.S. patent. However,
that should be viewed as clearly against the traditional rule of the lex
protectionis, because the U.S. patent cannot be infringed by activities in a
foreign, non-U.S. country[73], apart from
the possibilities of the so-called contributory infringements[74]. In other words, that portion of the judgment
is against the traditional principle of territoriality. If such a
comprehensive, worldwide injunction is rendered in the GII context, that
would have a chilling effect on the further development of information
superhighway[75].
In this context, the chilling effect or negative impact of the PLAYMEN
case[76] would be quite similar to that of
Stac v. Microsoft. The point in the PLAYMEN case is that the injunction
awarded there on June 19, 1996, was based on a violation, on the side of the
defendant, of a previous judgment rendered by the same court in 1981
(hereinafter referred to as "the 1981 Injunction[77]"). In other words, the PLAYMEN case was a
case of civil contempt.
The following are the facts of the case: The plaintiff, Playboy
Enterprises, Inc. (PEI), brought suit in the U.S. for injunctive relief
against Tattilo in 1979 to enjoin the use of the name PLAYMEN. The 1981
Injunction enjoined the defendant, Tattilo, from publishing, printing,
distributing or selling in the U.S. and importing into or exporting from the
U.S. an English language male sophisticate magazine under the name
"PLAYMEN". PEI was successful in enjoining the use of the PLAYMEN name in
the courts of England, France and West Germany, but not in Italy. The
publication of PLAYMEN in Italy continues to the present day. On
approximately January 22, 1996, PEI discovered that Tattilo had created an
Internet site featuring the PLAYMEN name. Tattilo created this site by
uploading the images onto a World Wide Web server located in Italy. Anyone
in the U.S. with access to the Internet has the capacity to browse the
PLAYMEN Internet site, review, and obtain copies of PLAYMEN magazine.
In the PLAYMEN case of 1996, the U.S. court reaffirmed that "failure to
comply with the court order need not be willful", and said as follows: “The
primary issue before the Court is whether the Defendant distributed or sold
the PLAYMEN magazine in the U.S. when it established an Internet site [in
Italy] containing pictorial images under the PLAYMEN name[78]. ... The purpose behind the [1981] Injunction
was to restrict the ability of Defendant to distribute its product in the
U.S. .... Allowing the Defendant to contravene the clear intent of the
[1981] Injunction by permitting it to distribute its pictorial images over
the Internet would emasculate the [1981] Injunction[79]. ... [T]o support a finding of a violation ...
such use must have been made in connection with a sale or distribution
within the U.S.[80]. ... Here, Defendant
does more than simply provide access to the Internet[81]. ... Defendant argues that it is merely
posting pictorial images on a computer server in Italy, rather than
distributing those images to anyone within the U.S.[82]. ... [However,] Defendant has actively
solicited U.S. customers to its Internet site, and in doing so has
distributed its product within the U.S.[83]. ...Tattilo cannot be prohibited from
operating its Internet site merely because the site is accessible from
within one country in which its product is banned. To hold otherwise ...
would be tantamount to a declaration that this Court, and every other court
throughout the world, may assert jurisdiction over all information providers
on the global World Wide Web. ... The Internet deserves special
protection.... However, this special attention does not extend to ignoring
court orders and injunctions[84]. ... While
this Court has neither the jurisdiction nor the desire to prohibit the
creation of Internet sites around the globe, it may prohibit access to those
sites in this country[85]."
However, the contents of the order of the U.S. court were as
follows[86]: "Tattilo is required, within
two weeks of the date of this Order, to: (1) either shut down its Internet
site completely or refrain from accepting any new subscriptions from
customers residing in the U.S.; (2) invalidating the user names and
passwords to the Internet site previously purchased by U.S. customers; (3)
refund to its U.S. customers the remaining unused portions of their
subscriptions; (4) remit to PEI all gross profits earned from subscriptions
to its Internet service by customers in the U.S.; (5) remit to PEI all gross
profits earned from the sale of goods and services advertised on its PLAYMEN
Internet service to customers in the U.S.; (6) revise its Internet site to
indicate that all subscription requests from potential U.S. customers will
be denied; and (7) remit to PEI its costs and attorney's fees incurred in
making this application. If these conditions have not been met within the
stated two-week period, Tattilo shall pay to PEI a fine of $1,000 each day
thereafter until it fully complies with this Order."
In this case, the court order was based exclusively on the U.S. law. As
stated before, it was a contempt case. Therefore, it seems that the court
found no need to mention the applicable law. Rather, the whole problem
seems to have been characterized as procedural on the level of conflict of
laws. By the same token, the defendant's argument on personal or subject
matter jurisdiction was rejected by the court, and the court said quite
simply, "[T]his Court retained jurisdiction over Defendant for the purposes
of enforcing the 1981 Injunction[87]."
This is a peculiar phenomenon to the U.S.. The problems of applicable
law and jurisdiction were completely "bypassed", and there was a “meltdown"
of conflict of laws problems in the depth of the U.S. judicial system[88]. The 1981 Injunction confined itself within
the U.S., but in the 1996 Injunction the defendant was required, as an
alternative, to shut down its Internet site located in Italy completely.
The actual meaning of the 1996 Injunction in its totality might be to urge
the defendant to choose this alternative. One should be allowed to ask,
anyway, whether such an extraterritorial order can be based exclusively on
the law of the forum. The court says: "While this Court has neither the
jurisdiction nor the desire to prohibit the creation of Internet sites
around the globe, it may prohibit access to those sites in this country."
However, actually the court in the PLAYMEN case did something very serious
beyond the prohibition of access in the U.S..
Fentiman seems to be willing to support the English practice on a
different ground, although the double actionability rule, one of the reasons
for such a negative attitude, was abolished in England by adopting the
Private International Law (Miscellaneous Provisions) Act 1995[92]. On the one hand, he admits that there is
"almost universal condemnation" of such a practice[93]. On the other hand, he states: "[T]he true
vehicle for expressing any unease about foreign intellectual property claims
is the doctrine of forum non conveniens[94]." He also states: "The English experience is
instructive ... in so far as it discloses some fundamental questions about
the very appropriateness of litigating intellectual property rights other
than in the place of exploitation or infringement[95]".
Although similar solutions can be found sometimes in the practice of
other countries[96], one thing which should
be clarified here is that the principle of territoriality cannot be relied
upon to deny jurisdiction in such cases. A judgment rendered by the Tokyo
District Court in 1953[97] denied the
plaintiff's claim for damages caused by the activities of the defendant in a
foreign country alleged to be infringements of the plaintiff's patent in
that country[98], but jurisdiction was
accepted.
Fentiman's view is correct in so far as he cautions against too wide a
range of jurisdiction over multinational copyright infringements. He
states: “A proper weighing of the balance of convenience between such rival
considerations [namely "the desirability of a claimant who is faced with
multiple infringements in different countries being able to consolidate his
claims in one court", on the one hand, and "the inappropriateness of such a
case being tried there" or "the claims of another country's court to be the
forum conveniens", on the other hand] is uniquely suited to the doctrine of
forum non conveniens[99]."
However, as Fentiman admits, "the doctrine of forum non conveniens is a
uniquely common law phenomenon[100]", and
there are some questionable aspects of that doctrine from the Japanese
perspectives[101]. To take some examples:
"[T]he difficulty of proving and applying foreign law"[102] should not be included in the factors for
the determination of jurisdiction. To consider "the risk that a ...
judgment [of the forum country] would be unenforceable in the foreign courts
whose law is being applied[103]" should be
viewed as one of the features of “the lex cause theory"[104]. Problems of jurisdiction should be
theoretically and practically “emancipated" from those of choice of law,
and, therefore, such consideration as that mentioned by Fentiman should be
removed from the factors for the determination of jurisdiction.
In Japanese practice, a proper weighing of interests of the parties and a
due consideration of “nexus" to the forum country have guided the courts, in
most of the cases, to very flexible and reasonable solutions of
jurisdictional problems in civil cases[105]. Fentiman's fear can be shared by the
Japanese courts, on a case-by-case basis, within the conventional framework
of international civil procedure law, but without relying on the doctrine of
forum non conveniens. Although Fentiman's argument about the "curial
resources[106]" seems to be the basis of
his reluctance in admitting jurisdiction over foreign infringements[107], it would be reasonable to accept
jurisdiction even over foreign copyright infringements in cases where the
nexus to the forum country is sufficient and the center of gravity of the
activities of both parties is clearly located in the forum country. In
other cases, details of the factual aspects of each case will show the
proper answer. One should be patient, as in other situations, to the
accumulation of relevant cases, and should not jump up to setting plausible
rules as if one were a legislator[108].
As Moufang states, “[t]he high attention currently paid in Europe to the
problem of extraterritorial injunctions is due to a number of recent
decisions of the Dutch courts[112]." Main
concerns in the said debates are injunctions rendered as provisional
measures[113]. He analyses the problem
mainly within the framework of Brussels Convention[114], but in the Netherlands some courts have
rendered cross-border injunctions which enjoin the activities even in
countries "outside Europe[115]".
It is quite natural that "a more cautious approach is being advocated by
many observers[116]" regarding the
above-mentioned Dutch practice. There are arguments also in Japan according
to which jurisdiction over interim measures should be treated separately
from that for the merits of the case, and the former may be allowed rather
extensively[117]. Such arguments should
not be followed, especially in the GII context[118].
Major problems posed by international copyright infringements would be
recognition and enforcement of foreign injunctions, whether the relevant
claims originate in cyberspace or in the real world. In this respect as
well, one must distinguish between civil matters and non-civil matters,
because, on the one hand, the above-mentioned articles are applicable in
Japan only to civil matters[122], and, on
the other hand, there are various types of injunctions, especially in common
law countries[123]. One must be very
cautious about the fact that there are different understandings between
common law countries and civil law countries with regard to the distinction
of civil and non-civil matters. The intrinsic character or function of the
relevant legal institution which forms the basis of a foreign judgment is
decisive at least in Japan, although there is a tendency in common law
countries, according to which, if the civil procedure law is applied in
deciding the case, then the matter is regarded as civil[124].
In the PLAYMEN case of 1996[125],
payment of money was ordered as remittance, refund and "a fine", together
with the prohibition of certain activities. The fact that the fine of
$1,000 per day was ordered to be paid to a private party, PEI, should be
seen, from the Japanese perspectives, as a symbolic example of the
intermingling of civil and non-civil matters in common law countries[126]. At first sight, if the defendant were a
Japanese company and the Internet site at issue were located in Japan, this
U.S. injunction might be seen as eligible for recognition and enforcement in
Japan. However, the answer of the present author is negative. This was a
case of contempt and, therefore, the problems of jurisdiction and applicable
law were clearly “bypassed"[127] by the
U.S. court and the U.S. plaintiff. Even if the payment is ordered to be
made to a private person, the intrinsic character or function of the legal
institution of contempt in its totality, therefore including the portion of
the prohibition of activities in Japan, should be viewed as decisive in
rejecting, in the above-mentioned hypothetical case, its recognition and
enforcement in Japan[128].
If a foreign injunctive order is categorized as "civil" in the
recognizing country[129], it is eligible
for recognition and enforcement. However, jurisdiction of the rendering
country[130] would be questioned if the
foreign injunction comprehensively prohibits (future) activities the center
of gravity of which is clearly located in the recognizing country. At the
same time, under the above-mentioned situation, the problem of public
policy[131] might occur in some
cases[132]. Intellectual property law has
certain inherent implications for competition and/or industrial
policy[133], even in the case of copyright
law, especially when one thinks of software protection. According to the
understanding of the present author, such concerns might be reflected in
deciding the recognition and enforcement of foreign injunctions rendered as
remedies for copyright infringements.
In non-civil matters[134],
extraterritorial application of national laws may sometimes pose problems.
In particular, “excessive" extraterritorial application of U.S. laws has
been the target of serious concerns on the Japanese side[135].
However, according to the understanding of the present author, the
problems of extraterritoriality in cyberspace would be the same as those in
the real world, because phenomena in cyberspace are only the triggers of
such an application. The problems of extraterritoriality are some of the
features of the doctrine of state jurisdiction[136]. It would be rather suitable to note here
just one point: Suppose a case where an official of a foreign government or
his nominee has actually removed from the Japanese territory, over the
telecommunication networks or by using other means, a decryption key
deposited in a Japanese key management system (or its copy) without the
consent of the Japanese government. That should be viewed as a clear
infringement of the Japanese sovereignty, or, in other words, the use of a
sovereign power by the foreign country within the territory of Japan[137]. That would be one of the features of
“cross-border lawful access[138]", and the
present author hopes that such a problem will remain in the imaginary world.
It is quite understandable that not a few people regard the traditional
framework of conflict of laws as insufficient and useless, in particular in
the context of the GII. However, the attempts to establish a new system
seem to be much more insufficient than the conventional system of conflict
of laws. The phenomena in cyberspace can and should be treated by the
latter, so does the present author believe. The latter should be viewed as
the fruits of scholarly research over centuries, or even a "crystal" of our
historical wisdom, even if it appears to be too fragile at first
sight[139].
There are arguments about international copyright infringements according
to which right-holders should be protected as strongly as possible.
However, a well-balanced approach should be needed also here as in the
discussions about the very reason for the exclusiveness of intellectual
property rights[140].
