No law in cyberspace
24 June 1997
Of the many new considerations that the widespread use of the Internet raises, one of the most significant is the issue of jurisdiction.
Copyright protection is territorial in nature, but the Internet has no regard for national boundaries. Many questions need to be answered before the global protection of works can be assured on the Internet. For example, when a user uploads an unauthorised piece of work, it will be transmitted worldwide through a number of jurisdictions. Is the law of every jurisdiction implicated? Which courts have jurisdiction over the Internet?
When a transmission is sent, the route is determined by the available telecoms links. It is likely that the path taken will be different each time. It may be difficult to identify the country or countries through which transmission and reception take place, making it practically impossible to determine which jurisdiction is affected.
The concept of jurisdiction is based on physical boundaries. Internet users exist in a physical jurisdiction, but cyberspace - through which Internet messages travel - does not. This leads to complications at both national and international levels.
There have been a number of cases in the US that question the jurisdiction of the Internet. The basic US constitutional starting point in establishing jurisdiction is that a person must have sufficient minimal contacts with a state before an action can be taken against him. These contacts need not be physical.
However, in United States v Thomas, a federal jury convicted the defendants for transmitting obscenity through a computer network. The defendants ran a bulletin board service in California, but the offending material was downloaded in Tennessee. The defendants did not have physical contact with Tennessee nor could it be said that they "purposefully directed" their transmissions to the state. The information did not exist in Tennessee until it was downloaded. Nevertheless, the defendants were convicted there.
The US Supreme Court in Burger King v Rudzewicz also found that there could be sufficient contact with a state where a party "purposefully directed" their efforts to that state. It is generally accepted, however, that contact by telephone, mail or electronic media is not, in itself, sufficient to establish jurisdiction. This view was supported by the Californian District Court in McDonough v Fallon McElligott where the defendant's only contact with the state was the operation of a site on the World Wide Web. It was held that there was insufficient contact with the state to support jurisdiction.
The position is unclear in cases involving several countries. For example, is the copyright work infringed when it is uploaded in England or downloaded in France, or in both countries? The issue of infringement must be agreed before jurisdiction can be settled. If it is determined that the copyright is infringed in a foreign country then the action must be pursued there. The court in Tyburn Productions v Conan Doyle found that the UK courts will not entertain disputes relating to the trademark, copyright or patent laws of foreign countries.
Under English law, liability only arises in respect of the acts done in the UK. For material that is uploaded, received and routed through servers which exist only in the UK, English law will apply. It remains unclear what the position will be when a more complicated transmission is condemned. It has been argued that in cases involving the Internet, the plaintiff will have a choice of jurisdiction and can choose to pursue an action in a country with more developed intellectual property laws.
There has been consideration recently on the position of extra-territorial jurisdiction in Europe. Dutch courts have been granting cross-border injunctions in relation to intellectual property cases and, as such, are becoming a favoured jurisdiction. This may soon be the case with English courts as well.
On an international level, there have been a number of proposals calling for the abolition of geographical restraints. The British Copyright Council has submitted proposals to the European Commission stating that it is "impractical to distinguish between the countries of origin of all protected material used in transmissions". Similarly, it has been argued that as transmission of a work cannot be restricted geographically, the justification of granting rights to a copyright owner based on such a restriction needs to be examined.
It is clear that several issues need to be considered before copyright owners can be assured of protection on Internet. Because of the nature of the Internet, this will not be possible until global harmonisation of copyright law is achieved.