Lost In Transit: How Enforcement of Foreign Copyright Judgements Undermines the Right to Research
The ease of travel in the globalized, modern world is a double-edged sword for the right to research: while research opportunities are bolstered due to information and data traveling extremely easily in the digital world, the right to research may be undermined by the easy travel of foreign copyright judgments between countries. This article analyzes thoroughly, for the first time, the threats posed to the right to research by private international law instruments on recognition and enforcement of foreign copyright judgments. This article uses a theoretical and doctrinal perspective to analyze the matter, demonstrating that the right to research, aimed at promoting innovation and creativity, is an integral part of, and an important balance within, the copyright paradigm. Since the right to research differs from country to country, it is especially vulnerable at the transnational level and is thus susceptible to abusive use of strategic foreign judgment enforcement proceedings. The article demonstrates that the risks to the right to research are intensified by a threefold bias that benefits the copyright holder while disadvantaging researchers, as the right holder is usually the initiator of the proceedings; has the choice of the forum; and has an incentive to request enforcement of the foreign judgment after it is granted—a bias summarized by the acronym ICE. These risks and vulnerabilities justify serious consideration in light of recent efforts to negotiate international instruments on the enforcement of foreign copyright judgments, especially in an age when national courts grant extraterritorial and even global injunctions in the realm of intellectual property. The article conceptualizes the application of private international law rules and notions to copyright law as akin to a legal transplant within copyright law, highlight the risks of such “transplant”, and demonstrating that private international law rules may not only interfere with internal copyright balances, but also undermine, and even nullify, the right to research. The article then outlines possible policy solutions to address these threats both on the national and international levels and, most importantly, proposes that the discussions on any international instrument on the enforcement of foreign copyright judgments take place under the auspices of the World Intellectual Property Organization (WIPO), a copyright-expert forum that will properly protect the right to research.
Daniel, Naama, "Lost In Transit: How Enforcement of Foreign Copyright Judgements Undermines the Right to Research" (2023). Joint PIJIP/TLS Research Paper Series. 85. https://digitalcommons.wcl.american.edu/research/89.