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How does "public domain" work when different laws apply in different countries?

Glendale, AZ |

Since different countries have different laws re: public domain, how can one deal with these different laws?

What if the situation of a person and the company he works for differ? Say someone lives in Canada but works for an American company. If a literary work is in the public domain in Canada but not in the US, can that person scan that work and post it on his web site? On the company's website? Which country’s laws are applicable? Is it different if the person is a Canadian or US citizen? Is it different again if the website servers are located in Canada, the US or a third country?

Is it different if the person is copying a scanned eBook that is on a website in Canada or in the US? Is it different if the company whose eBooks are being copied is a Canadian or American company?

I was hoping to get some general rules. I realize that to get a proper legal opinion i must consult an attorney.

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Filed under: Intellectual property
Attorney answers 6

Best Answer
Posted

You're right, we have a global economy now. That said, every country still has a right to its own laws. The good news is there are quite a few treaties in the area of intellectual property law that try to reach commonality on most of the big-picture items. That said, every country has a very slightly different take on what is "public domain" and what is not. For instance, in the U.S. we have First Amendment considerations to deal with that most other countries don't have.

So the direct answer to your question (how do you deal with all the different laws), the answer is to hire lawyers in all the different countries where you expect you might have exposure. There is no other easy answer, in fact there is no easy answer at all.

Good Luck.

Asker

Posted

There must be some general rules on how to deal with multiple jurisdictions,

John E. Whitaker

John E. Whitaker

Posted

The only geral rule I am aware of is "hire a lawyer wherever you do business"

Asker

Posted

that means that for a global business, for example one on the web, would someone need to hire lawyers in each jurisdiction in the world? or is "wherever you do business" the place where the company is located, the website is located, where most employees are located or where users are located?

John E. Whitaker

John E. Whitaker

Posted

Your question has become so abstract that it's lost its meaning. Are you asking whether you have to hire lawyers all over the world just because you have a web site? Of course not. But you asked how "public domain" works. It's unclear what you mean by that, but the equally vague answer is every country around the world has its own laws. You can't avoid that. I don't know how else to put it.

Posted

Counselor Whitaker is correct that a global economy fitted to a world with some 200 sovereign does not fit perfectly. I think the relevant nations are those where the scan is done, and where the website is hosted, although others may differ. The citizenship of the individuals is not so relevant, except to the extent a citizen is practically most amenable to coercion and damage actions where he or she is a citizen.

Some nations do claim extra-territorial effects of their laws, but mostly for piracy (the kind with guns and knives, not scanners and computers) and terrorism.

Information here is general, does not create a lawyer-client relationship, nor a substitute for consulting with an experienced attorney on the specifics of your situation.

Asker

Posted

How does a person decide where the scan is done? If a Canadian resident does a scan for an American company, is the scan done in Canada or the US?

Philip Leon Marcus

Philip Leon Marcus

Posted

I suppose in Canada. The Canadian contractor is not likely to schlep his or her stuff across the border to do the work. This choice is an economic one.

Asker

Posted

Would you suppose this to be the case even if the scan was uploaded to a website located in the US?

Posted

Courts in the United States apply the law where the infringement occurs. What does this mean? Suppose you publish an album in the United States of recordings that are in the public domain in the United Kingdom, but would be under copyright protection in the United States. In an infringement action brought in a US court, the infringement action would likely be sustained. I've attached a link to an article I wrote about a case with this fact pattern.

Asker

Posted

That's the question that is important. How do we decide where the infringement occurs. In your case, if he does so in the UK for an american audience, is that an infringement of American copyright laws? If not, why would we bother about the more stringent copyright laws at all? We always publish it where it's in the public domain.

Posted

I'm confused by your fact pattern. Does the person or the company that employs the person have anything to do with the creation of the work that you think has fallen into the public domain?

Any answer or other information posted above is general in nature and is not intended, nor should it be construed, as legal advice. This posting does not create an attorney-client relationship between you and the posting attorney, and you are urged to engage a qualified attorney who is licensed to practice in the relevant jurisdiction.

Michael Charles Doland

Michael Charles Doland

Posted

Thank you for your observation Ms. Hanson. Perhaps the red herring?

Michael Charles Doland

Michael Charles Doland

Posted

I apologize for just having mis-spelled your name.

Molly Cristin Hansen

Molly Cristin Hansen

Posted

No worries. : )

Asker

Posted

If a person is making a copy on behalf of a company on a company website, what is relevant, the person or the company or the location of the website from which it was copied, or the location of the website to which it was copied? Further is distributing or referring to whether by a link or in an iframe the same as copying?

Molly Cristin Hansen

Molly Cristin Hansen

Posted

Asker, You didn't answer my question. That being said, the bottom line is that if copyright infringement could be deemed to occur at any stage, an action could be brought against the party that made the infringing copy or distributed the infringing copy. With regard to your final question, a simple, ordinary link does not involve making a copy of or distributing content. So, including a simple, ordinary link that takes a user who clicks on it to a page where the content owner posted the content would not typically give rise to a copyright infringement claim. However, whether a particular use of framing gives rise to infringement is a fact specific analysis that is beyond the scope of an Avvo answer. If you are serious about any of this, you need to consult with an internet attorney in your area.

Asker

Posted

Thank you, In reply to your query: "Does the person or the company that employs the person have anything to do with the creation of the work that you think has fallen into the public domain?" No, the person or company is copying a work that is in the public domain in one country (copying the public domain copy), and enabling it to be seen without permission of the copyright owner) in another country where it is not in the public domain. Is that considered copyright infringement? Why consult an attorney "in my area"? And what is my area? Is the the location of the company head office, the location of the employee, the location of the website, the place that the company is incorporated, the country(ies) of which the employee is a citizen?

Molly Cristin Hansen

Molly Cristin Hansen

Posted

Your "area" is where you live -- i.e., local to you. You need to consult with an attorney because the analysis here is going to be very fact specific, and you should not provide the details needed for the analysis in a public forum like Avvo. Good luck!

Asker

Posted

thank you

Posted

There are several ways to deal with international trademark issues such as public domain vs. infringement, and here are a few:
1. research the differences yourself, for example using INTA resources such as those available at http://www.inta.org/GlobalTrademark/Pages/main.aspx. Cheapest but riskiest
2. hire an attorney in each country, or a multinational firm with offices in the relevant countries such as one list at http://en.wikipedia.org/wiki/List_of_100_largest_law_firms and let them advise. Good but very expensive.
3. hire a trademark attorney in the US and let that attorney coordinate with the various foreign attorneys in the countries of interest, which takes you out of the loop somewhat, but will usually cost less than using an international firm. Good and less expensive.

Where you are just concerned over Canada and the US, the best will be option 3 as your US attorney will know US law and will either know Canadian law on the matter or will know who to contact for Canadian advice. If you are located in Canada, your Canadian trademark attorney will most likely know US law as that is where the bulk of business originates.

So far, this is free to you. Until you pay a fee, I am not your lawyer and you are not my client, so you take any free advice at your sole risk. I am licensed in IL, MO, TX and am a Reg. Pat. Atty. so advice in any other jurisdiction is general advice and should be confirmed with an attorney licensed in that jurisdiction.

Asker

Posted

I agree that your option 3 might be the best option, but i generally try to know something before i ask for a legal opinion so that i know better how to frame the question. In this case, there seem to be too much variety to frame the questions easily.

Posted

If you have a business need for the answers to your various and sundry questions then you need to integrate them into a business scenario and then re-ask them.

If you're simply curious about copyright law for academic reasons then you should read some books about copyright law: http://goo.gl/VspC3

The above is general information ONLY and is not legal advice, does not form an attorney-client relationship, and should NOT be relied upon to take or refrain from taking any action. I am not your attorney. You should seek the advice of competent counsel before taking any action related to your inquiry.

Asker

Posted

thank you. i will try to integrate them into a business scenario

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