International Copyright: Principles, Law, and Practice

The international exploitation of copyrighted works often implicates questions of territoriality, national treatment, and choice of law. Copyright is territorial: a French or Japanese copyright does not exist outside France or Japan.¹ The treaty obligation of national treatment requires member countries to give works originating in other member countries no less favorable treatment than they give to works of their own nationals; under the Berne Convention, for example, a Japanese work will as a rule receive in France the same protection that a work by a French national would receive in France.² The general choice of law rule for determining whether a copyright has been infringed is to apply the law of the country in which the unauthorized use occurred; if a lawsuit is filed in the United States for the unauthorized use in France of a work originating in Japan, the United States court will apply French law to determine whether the use infringes.³

Territoriality, national treatment, and choice of law overlap. If, as a rule, a country's copyright law has no effect outside its territory, its copyright law will also be the only one that has effect inside its territory—at least so long as other countries follow the same rule. Since the relevant choice of law rule for copyright infringement calls for application of the law in force in the place where the infringement occurred, territoriality implies that the law governing an infringement will in most, if not all, cases be the law of the country where the infringement occurred. Similarly, national treatment under the copyright treaties, although not strictly speaking a choice of law rule, often

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