Let me start with two items of received wisdom: 1) Copyright is territorially-based; 2) Cyberspace is not. But copyrighted works circulate in cyberspace. What does that mean for their protection? I have not labeled this essay "The Cyberian Captivity of Copyright," just because the title is alliterative and fittingly portentious for an inaugural lecture. Rather, like the "Babylonian Captivity" of the papacy in Avignon that the title recalls, it suggests a displacement of an international institution. This need not mean, however, that the displacement is a Bad Thing - after all, the French probably have a more favorable view of the Avignon sojourn than might others. (Similarly, as a Danish law professor testily informed me, the events
provoking the fifth-century collapse of the Western Roman Empire that we in the U.S. learned to call the "Barbarian Invasions," Northern Europeans name the "Great Migrations.") It generally depends on whether one analyzes the issue from the point of view of the displacer or the displacee. In this essay, the point of view I wish to take is that of authors who create or disseminate works over digital networks. I believe that their situation reflects both perspectives. Like the Avignon popes and the fifth century Roman emperors, authors might be considered displaced persons, because others might cast their works into the digital Empyrean, disconnected from physical points of attachment to any particular jurisdiction. But, like the Germanic tribes that crossed the Rhine River late in December 406, at least some authors might also be considered the displacers, because they choose to exploit the newly-found technological irrelevance of national borders. For example, in the analog world, selecting the country of first publication was a momentous choice, because it grounded the work in that country's legal system. By contrast, however, today's authors can disseminate works through websites, or mount their own websites on servers whose nationality they may neither know nor care about. Today's authors may choose to use the Net to publish their works instantaneously in every country where users have Internet access.
Intellectual Property Law | Law
Jane C. Ginsburg,
The Cyberian Captivity of Copyright: Territoriality and Authors' Rights in a Networked World,
Santa Clara Computer & High Tech. L. J.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3517