LAW APPLICABLE TO COPYRIGHT INFRINGEMENT IN THE DIGITAL ENVIRONMENT

1. The only assumption considered is that of copyright infringement, as the scope of this paper rules
out consideration of related rights.
2. The study is also confined to the question of the applicable law and excludes that of
jurisdictional competence. In regard to the latter point, reference will therefore be made only to the draft
convention of The Hague Conference on Private International Law on Jurisdiction,
Recognition and Enforcement of Foreign Judgements in Civil and Commercial Matters and to the work of
the American Law Institute.
3. Furthermore, it is recognized that the discussion must cover not only treaty law (which refers, in
practice, to the Berne Convention) but also ordinary law, which applies when the situation created
by the infringement of a right cannot be linked to any international instrument.
4. Lastly, it is appropriate to point out, as a methodological precaution, that private international law
is a discipline in which it is often difficult to achieve certainty, and that is particularly true of the Internet,
whose worldwide scope poses the traditional problem anew.
5. It is striking to note that the question of the conflict of laws has long been obscured in
the field of copyright. An initial explanation, which must not be underestimated, is that the subject
is one of great complexity. It was probably also thought that the conflict of laws could be avoided
through the harmonization of legislation and the principle of assimilating foreigners to nationals
(“national treatment”), the standard under international copyright conventions, it being asserted, at least
implicitly, that where a foreigner is allowed to enforce his or her copyright in a country, only that country’s
domestic law shall apply.