International Dimensions

• Author: Cameron Hutchison
• Pages: 191-213

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International Dimensions

A. INTRODUCTION

is chapter examines the public and private international law dimen-

sions of copyright. ere are a number of provisions in the Copyright

Act which are intended to fulf‌ill our obligations under international law.

ese include the national treatment rule, which extends a principle of

non-discrimination towards works of foreign provenance, as well as (in

the digital context) anti-circumvention measures. Much of this chapter

is devoted to private international law — a f‌ield concerned with private

disputes with multi-jurisdictional elements — and the way in which it

has been adapted to copyright infringement over the Internet. Canadi-

an rules on jurisdiction, choice of law, and judgment enforcement are

generally not well developed in the Internet context and are even less

developed as they apply to copyright infringement. In response, I oer

a framework through which the rules on jurisdiction and choice of law

might be developed. e chapter ends with a discussion of proposed

principles for managing the problem of ubiquitous infringement over

the Internet.

B. PUBLIC INTERNATIONAL LAW

Each sovereign state determines the copyright rules applicable within

its jurisdiction. Public international law — in particular, treaty law — sets

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minimum standards that signatory governments are to implement in

their national legislation. ese provisions relate to, among many oth-

ers, the minimum duration of the copyright term. As many treaty ob-

ligations are broadly stated, there is much scope left for how national

governments choose to implement these standards. us, user rights

such as fair dealing or fair use (or in international copyright treaty lan-

guage, “limitations” or “exceptions”) vary signif‌icantly from country to

country. For our purposes, the “Internet” treaties of the World Intel-

lectual Property Organization (WIPO) are the most signif‌icant as they

establish certain minimum standards for protecting copyrighted works

in the digital context. e most prominent of these is the addition of

the “making available right” and the obligation on states to provide ad-

equate legal measures to combat the circumvention of technological

protection measures placed on copyrighted works.

Beyond minimum standards, copyright treaties typically impose a

national treatment rule to be applied to works of foreign provenance.

In other words, signatory states are required to aord the same legal

treatment to works of foreign origin as they do to domestic works.

ere is an inclusive basis for capturing foreign works, and related

subject matter, under these treaties and as ref‌lected in Canadian copy-

right law. Recognizing that “treaty country” as def‌ined in the Canadian

Copyright Act encompasses countries that are World Trade Organization

(WTO) members, which includes most countries in the world, section

 oers protection to works whose author is a citizen or resident of a

treaty country and, in more limited circumstances, where f‌irst publi-

cation occurs in a treaty country. erefore, original works made in

most countries of the world are aorded Canadian copyright protec-

tion the moment they are created. Foreign works are thus subject to

Canadian rules on copyright within Canada. Similarly, generous rules

for recognizing foreign works on the basis of the national treatment

1 See, for example, Berne Convention for the Protection of Literary and Artistic Works,

Can TS 1998 No 18 [Berne Convention]; Agreement on Trade-Related Aspects of Intel-

lectual Property (1994) IIC 209 [TRIPS Agreement].

2 WIPO Copyright Treaty, Can TS 2014 No 20 [WCT]; and WIPO Performances and

Phonograms Treaty, Can TS 2014 No 21 [WPPT].

3 See WCT, above note 2, arts 8 and 11, respectively. The “making available” right is

implemented under s 2.4(1.1), and anti-circumvention measures appear under s 41.1,

of the Act.

4 See ss 5(1)(a) and (c).