As was previously mentioned, the proposed mechanism offers three alternative paths for a solution--making provisions for possible failures. The first path is based on an international convention on jurisdiction and recognition of judgments and decrees from copyright cases; the second is based on comity; and the third is premised on a reliance on administrative remedies available in countries where the rate of piracy is unusually high. The first path is the most important--and ambitious--proposal of this Article.
A. International Convention on Recognition of Copyright Decrees and Judgments
As experience has shown, an international convention on recognition and enforcement of foreign judgments is rather difficult to achieve. There are no conventions of this kind at a multilateral level and only a few bilateral treaties, besides the EC Regulations, have succeeded in their negotiations. The primary reason for difficulties in achieving a convention on recognition and enforcement at the multilateral level is related to discrepancies among countries in their rules to assess jurisdiction over nonresident defendants. (159) Also, there is a fear of large punitive damages awards. (160) However, if the scope of an international convention is restricted to copyright litigation where there are no punitive damages and where different laws seem to be better harmonized with similar remedies, the likelihood of successful negotiations will increase.
This was likely the case for the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) and the Inter-American Convention on International Commercial Arbitration (Panama Convention); both have a large number of adherents and are widely recognized. (161) This large acceptance is due to the fact that both conventions are applicable only to cases of arbitration where there is an arbitral agreement or clause among parties and there are grounds for non-recognition. Grounds for non-recognition include arbitral awards not covered by the convention and circumstances such that it would be against domestic public policy. (162) The limitation in the application--not to all cases, but just for arbitral cases--and the inclusion of grounds for non-recognition, including domestic public policy, were the key provisions for the acceptance of these conventions.
Having explained the difficulties of a general litigation jurisdiction and enforcement convention, I now turn to an explanation of the proposed bases for a possible convention that will cover copyright infringement cases. The first issue that I will examine is the application of the proposed convention, then questions of jurisdiction and applicable law, problems with preliminary injunctions, and finally, grounds for non-recognition.
These proposed bases are limited to copyright infringement cases. Their scope is not open to other intellectual property rights. Due to the non-formalities requirement of the Berne Convention, copyrights are in the best position to be litigated internationally; no copyright prosecution is necessary to obtain protection so copyrighted works are protected automatically in the Member States of major copyright conventions. (163) There is no need for an administrative determination regarding the creation of the right, and consequently, it is not necessary to review any act of any official, either national or foreign. (164) There are some countries in which available remedies are limited if there is no registration, but most countries do not restrict remedies if the work is not registered. Copyrights are different than trademarks or patents where the validity of the act of issuance could be at stake in each infringement action commenced by the holder because copyrights do not depend on the issuance of a title for their creation. (165)
In the course of copyright litigation, several things have to be demonstrated by the plaintiff and several defenses may be pursued by the defendant. …