The Jurisdictional Challenge

“Global computer-based communications cut across territorial borders, creating a new realm of human activity and undermining the feasibility – and legitimacy – of applying laws based on geographic boundaries.”[1]

Jurisdiction describes the legal term for the limitation on the ability of a court to determine disputes, where generally a nation’s state jurisdiction only extends to individuals who reside within their country or to the transactions and events which occur within the natural borders of the nation.[2]

The Internet presents the legal systems of the world with a unique challenge; it creates a paradigm that prevents any single nation from enforcing its laws over the whole.[3]

Bailey outlines three factors that are problematic in terms of applying state law to the Internet[4] – firstly, that the participants in Internet, Netizens, activity cannot be easily identified. Secondly, the Internet transcends borders so that its reach is global. Finally, and arguably most problematic of all is that the Internet is not centrally owned or maintained. Without being able to identify those committing an infringement and the relevant location, stringent national laws for copyright are rendered ineffective as the jurisdictional difficulties prevent adequate enforcement.[5]

Johnson and Post take this proposition further noting that “The rise of the [Internet] is destroying the link between geographical location and: (1) the power of local governments to assert control over online behaviour; (2) the effects of online behaviour on individuals or things; (3) the legitimacy of the efforts of a local sovereign to enforce rules applicable to global phenomena; and (4) the ability of physical location to give notice of which sets of rules apply.”[6]

John Perry Barlow raises the issue of how digital technology is “erasing the legal jurisdictions of the physical world and replacing them with the unbounded and perhaps permanently lawless seas of Cyberspace.”[7] The notion follows that in the offline world, there are physical borders where a crime may be contained, and a physical setting which will prescribe the jurisdiction for prosecution. Another issue is exactly how the International community in their individual capacities choose to recognise and regulate Internet crimes. This is difficult when there is no consensus on where a breach of copyright has occurred let alone where it happened.

The Australian High Court decision of Dow Jones v Gutnick[8] did little to resolve the issue by adopting a national approach to issues of jurisdiction. As a result, Australia appears to be taking a ‘territorial’ approach, which becomes problematic where it means that posting a work on the Internet calls into play the laws of every country in which the work may be received when these laws may differ substantively.[9]

 

In arguing that a nationalistic or ‘territorial’ approach to jurisdiction issues is inadequate, the alternative must be a global initiative. This is a challenging premise when one considers that copyright law in “real space” has always been a national initiative as prescribed by each country. This is not to say that there have not been international attempts at designing global solutions, such as WIPO.

The globalisation of information has brought an all-new issue to the unresolved “real space” copyright debate. Traditional laws are now being additionally challenged by the need to create international standards for regulating and supervising the transfer of data.

Aside from other harmful consequences of unchecked data transfer (e.g. defamation suits, fraud etc), copyright protections could feasibly be avoided by moving an operation to a more ‘favourable’ jurisdiction thereby avoiding anypossible liabilities that may occur for infringements elsewhere.[10] Bollen raises the issues of residency, place of business and jurisdiction when copyright is dealt with at the national level and concludes that whilst “Such issues are not unique to the digital domain [they] are considerably exacerbated in this context.” Consequently, the development of international standards by internationally representative bodies such as WIPO are critical in the fight against copyright infringement.

What may be seen in forthcoming years may be a technological form of copyright, rather than nation specific laws – that is, that technological barriers to infringement will be the source of copyright protection, rather than a set of laws that can be used to penalise an infringer. Under this pretence, the copyright protection is achieved not only in the right, but by preventing the possibility of infringement from occurring in the first place. This would to some extent solve the issue of Internet technology evolving faster and creating more pathways for infringement than the legal system can keep up with.


[1] Johnson, D.R. and Post D.G. “Law and Borders – The Rise of Law in Cyberspace”, 1996, 48 Stanford Law Review 167

[2] Oberding, J. M. and Norderhaugh, T. “A Separate Jurisdiction for Cyberspace?”, 1996, Journal of Computer-Mediated Communication, Vol 2, Iss 1, available at http://www.ascusc.org/icmc/vol2/issue1/juris.html accessed 25 May 2005

[3] Cohen, B. “A Proposed Regime For Copyright Protection on the Internet”, 22 Brook J. International L. 401, 405 at 408

[4] Bailey, M. “Cyber libertarian Thought and Internet Regulation”, 2002, LAWS 3039 Seminar Notes, Lecture Notes for Internet Cultures, Week 10, 24 September, available at http://www.chickenfish.cc/copy/Publications/Lecture10.doc accessed 25 May 2005

[5] Siegel, M.L. “Online Information Provider Liability for Copyright Infringement: Potential Pitfalls and Solutions”, 4 VA. J.L. & Tech. 7

[6] Johnson, D.R. and Post D.G. “Law and Borders – The Rise of Law in Cyberspace”, 1996, 48 Stanford Law Review 167

[7] Barlow, J.P. “The Economy of Ideas: Selling Wine Without Bottles on the Global Net”, 2001, 1 October, available at http://www.eff.org/~barlow/EconomyOfIdeas.html accessed 25 May 2005

[8] [2002] HCA 56

[9] Ginsburg, J.C. “Global Use/Territorial Rights: Private International Law questions of the Global Information Infrastructure”, 1995, J. COPY. SOC. 318, 319-320

[10] Bollen, R. “Copyright in the Digital Domain”, (2001) 8 (2) Murdoch University Journal of Law 1

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