Itar-Tass Russian News Agency v. Russian Kurier, Inc.

Last updated
Itar-Tass Russian News Agency v. Russian Kurier, Inc.
Court United States Court of Appeals for the Second Circuit
Full case nameItar-Tass Russian News Agency, et al v. Russian Kurier, Inc., et al
ArguedDecember 17, 1997
DecidedAugust 27, 1998
Citation(s)153 F.3d 82; 1998 Copr. L. Dec. (CCH) ¶ 27,813; 47 U.S.P.Q.2d 1810; 26 Media L. Rep. 2217
Case history
Prior history886 F. Supp. 1120 (S.D.N.Y. 1995)
Court membership
Judge(s) sitting Wilfred Feinberg, Jon O. Newman, Joseph M. McLaughlin
Case opinions
MajorityNewman, joined by Feinberg, McLaughlin

Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F.3d 82 (2d Cir. 1998), was a copyright case about the Russian language weekly Russian Kurier in New York City that had copied and published various materials from Russian newspapers and news agency reports of Itar-TASS. The case was ultimately decided by the United States Court of Appeals for the Second Circuit. The decision was widely commented upon and the case is considered a landmark case because the court defined rules applicable in the U.S. on the extent to which the copyright laws of the country of origin or those of the U.S. apply in international disputes over copyright. The court held that to determine whether a claimant actually held the copyright on a work, the laws of the country of origin usually applied (more precisely: "copyright is a form of property" and under the Second Restatement's approach, the governing law is "determined by the law of the state with 'the most significant relationship' to the property and to the parties"), but that to decide whether a copyright infringement had occurred and for possible remedies, the laws of the country where the infringement was claimed applied ( lex loci delicti ). [1]

Contents

Case history

Itar-TASS, several Russian newspapers, and a Russian association of professional journalists (the Union of Journalists of Russia, in Russian: Союз журналистов России) sued Russian Kurier, its owner, and its printing company for copyright infringement in 1995 in the United States District Court for the Southern District of New York. The court issued a preliminary injunction against the defendant. [2] This preliminary injunction applied to all copied articles for which the plaintiffs had registered copyright with the U.S. Copyright Office [2] [3] or that were published after March 13, 1995, the date Russia signed the Berne Convention. [1] [2] [4] The U.S. at that time still required explicit copyright registrations for copyrights to be recognized as valid. Of the more than 500 articles Russian Kurier had copied from 1992 to 1995, [4] the court considered 317 copyrighted in the U.S. as "Berne Works" (i.e., works originally published in another member country of the Berne Convention, of which the U.S. had been a member since 1989), and a further 28 first published in Russia before March 13, 1995 were copyrighted in the U.S. because they were indeed registered at the U.S. Copyright Office, accounting for a total of 345 copyright violations. [5]

In its ruling two years later (No. 95 Civ. 2144(JGK) (S.D.N.Y. March 10, 1997); also known as "Itar-TASS II"), the court found Russian Kurier and its owner guilty of multiple copyright violations, committed willfully. The court upheld the injunction and fined the defendants US$ 500,000 in favor of the plaintiffs. The printing company was fined US$3,934 as by printing the newspaper, the court considered it had contributed to the commitment of these copyright violations, although without intent. [4] The court defined that the plaintiffs' rights were to be determined by Russian law, but the infringement had to be judged by U.S. law; and came to the conclusion that under Russian copyright law, the news agency Itar-TASS and the individual authors of the newspaper articles certainly were copyright holders and thus entitled to sue. However, the district court denied the journalist's association any right to relief as it was unclear exactly which of its members were authors of the copied articles, or whether all such authors were indeed members. There was some dispute over the copyright claims by the newspapers, as the defendants experts argued that these only held a copyright on their publication "as a whole" but not on individual articles, but the district judge agreed with the plaintiffs' expert who interpreted the relevant paragraphs of the Russian law as giving rise to "parallel exclusive rights in both the newspaper publisher and the reporter", similar to co-authorship. [1] [4]

The defendants appealed against that court's ruling. The case came before the United States Court of Appeals for the Second Circuit (153 F.3d 82 (2d Cir. 1998)), which partly confirmed and partly reversed the district court's ruling and remanded the case for further proceedings.

The court of appeals affirmed the choice of applicable law made by the lower court. It agreed that Russian law was to be used to determine who was the copyright holder of the work and that U.S. law was to be applied to figure out whether a copyright violation had occurred and to judge it. However, it overturned the decision of the district court regarding the newspapers. The court of appeals, after extensive analysis, found the view of the defendants' experts on the matter "more compelling". [1] It stated that newspapers had no copyright on individual articles in their publications but only a compilation copyright on the publication as a whole. The copyright on the text of the individual articles was found to vest in the individual authors of these articles unless there had been a contractual assignment of copyrights from the reporters to their employers (the newspapers). Since the newspapers did not provide any evidence of such copyright assignments, the appellate court ruled in this case that they did not hold the copyright on the text of the individual copied articles. Finally, the court explicitly decided

Because of the two last points, the case was remanded to the district court. The appellate court "in view of the reckless conduct of the defendants in the flagrant copying that infringed the rights of Itar-Tass, the rights of the authors, and very likely some aspects of the limited protectable rights of the newspapers" [1] left the injunction in force until the district court would, on remand, issue a new ruling. [1]

Consequences

The ruling concerning the choice of law (lex originis for determining copyright ownership and lex loci delicti for the infringement) was contrary to the previous presumption that only the law where the infringement occurred (i.e., lex loci delicti) would apply. It has been discussed controversially in several publications. [6] Since the Berne Convention does not offer any guidance on which law shall be applied to determine copyright ownership, [7] this ruling is still the relevant case law in this question and the principle is applied in the U.S. even in other recent cases. [8] The decision is only effective within the U.S.; other countries may follow other rules, such as using the lex loci delicti exclusively. [9]

The copyright in the U.S. on foreign publications that had failed to comply with the (former) formality requirements of the U.S. was generally restored when the copyright restorations of the Uruguay Round Agreement Act (URAA) became effective in the U.S. on January 1, 1996. The URAA was a result of the TRIPS agreement, part of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) negotiations. The URAA automatically restored the copyright on foreign works that were still copyrighted in their country of origin on January 1, 1996 [a] , but whose copyright in the U.S. had lapsed through non-compliance with the U.S. formalities, such as non-registration or a lack of international or bilateral copyright treaties between the country of origin of a work and the U.S. [8] [10] Later copyright cases in the U.S. do apply the URAA restorations and thus even may consider unregistered foreign works as copyrighted in the U.S. [8]

The lex loci delicti isn't always the US law, even for cases heard in the US. In London Film Productions, Ltd. v. Intercontinental Communications, Inc. (1984) a US corporation was sued by a British company for infringements under the laws of several Latin American countries; the US court determined that it had jurisdiction. [11]

In Bridgeman Art Library, Ltd. v. Corel Corp. (1998) a US court decided that it must apply the stricter US threshold of originality (decided in Feist v. Rural ) rather than the lower British standard invoked by the plaintiff.

A more complex case of determining ownership under Russian law in a US court was Films by Jove Inc. v. Berov because it involved two claimants to copyrights under the Russian laws to films by Soyuzmultfilm, themselves involved in litigation in Russia. A US judge basically overruled a decision by the Supreme Court of Arbitration of Russia because, in his view, the Russian court's decision was "strongly influenced, if not coerced, by the efforts of various Russian government officials seeking to promote 'state interests'", [12] thus lacking procedural fairness. [13]

In France, the Court of Cassation decided on 10 April 2013 that in case of conflicting laws, the French law prevails in all matters regarding copyright, including the determination of ownership. This ruling quashed the decision of a lower court, which had decided that in a lawsuit between a reporter-cameraman of a US media company operating in France, the US law applied in determining ownership of the footage. [14]

Footnotes

Related Research Articles

Choice of law is a procedural stage in the litigation of a case involving the conflict of laws when it is necessary to reconcile the differences between the laws of different legal jurisdictions, such as sovereign states, federated states, or provinces. The outcome of this process is potentially to require the courts of one jurisdiction to apply the law of a different jurisdiction in lawsuits arising from, say, family law, tort, or contract. The law which is applied is sometimes referred to as the "proper law." Dépeçage is an issue within choice of law.

<i>A&M Records, Inc. v. Napster, Inc.</i> US legal case

A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (2001) was a landmark intellectual property case in which the United States Court of Appeals for the Ninth Circuit affirmed the ruling of the United States District Court for the Northern District of California, holding that defendant, peer-to-peer (P2P) file-sharing service Napster, could be held liable for contributory infringement and vicarious infringement of the plaintiffs' copyrights. This was the first major case to address the application of copyright laws to peer-to-peer file sharing.

<i>In re Aimster Copyright Litigation</i>

In re Aimster Copyright Litigation, 334 F.3d 643, was a case in which the United States Court of Appeals for the Seventh Circuit addressed copyright infringement claims brought against Aimster, concluding that a preliminary injunction against the file-sharing service was appropriate, because the copyright owners were likely to prevail on their claims of contributory infringement and the fact that the services was capable of having non-infringing user was not enough reason to reverse the district court's decision. The appellate court also noted that the defendant could have limited the quantity of the infringements if he had eliminated an encryption system feature and if it had monitored the use of its systems. This made it so that the defense did not fall within the safe harbor of 17 U.S.C. § 512(i). and could not be used as an excuse to not know about the infringement. In addition, the court decided that the harm done to the plaintiff was irreparable and outweighed any harm to the defendant created by the injunction.

In conflict of laws, the choice of law rules for tort are intended to select the lex causae by which to determine the nature and scope of the judicial remedy to claim damages for loss or damage suffered.

Uruguay Round Agreements Act US free trade law with implications for intellectual property

The Uruguay Round Agreements Act is an Act of Congress in the United States that implemented in U.S. law the Marrakesh Agreement of 1994. The Marrakesh Agreement was part of the Uruguay Round of negotiations which transformed the General Agreement on Tariffs and Trade (GATT) into the World Trade Organization (WTO). One of its effects is to give United States copyright protection to some works that had previously been in the public domain in the United States.

The Copyright Act 1957 governs the subject of copyright law in India. The Act is applicable from 21 January 1958. The history of copyright law in India can be traced back to its colonial era under the British Empire. The Copyright Act 1957 was the first post-independence copyright legislation in India and the law has been amended six times since 1957. The most recent amendment was in the year 2012, through the Copyright (Amendment) Act 2012. India is a member of most of the important international conventions governing the area of copyright law, including the Berne Convention of 1886, the Universal Copyright Convention of 1951, the Rome Convention of 1961 and the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). Initially, India was not a member of the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) but subsequently entered the treaty in 2013.

Los Angeles Times v. Free Republic, 56 U.S.P.Q.2d 1862, is a United States district court copyright law case. Several newspapers sued the Internet forum Free Republic for allowing its users to repost the full text of copyrighted newspaper articles, asserting that this constituted copyright infringement. Free Republic claimed that they were not liable under the doctrine of fair use and the First Amendment guarantee of freedom of speech. The federal courts ruled in favor of the newspapers.

<i>Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc.</i>

Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., 75 F. Supp. 2d 1290, was a United States district court decision on the subject of deep linking and contributory infringement of copyright.

The rule of the shorter term, also called the comparison of terms, is a provision in international copyright treaties. The provision allows that signatory countries can limit the duration of copyright they grant to foreign works under national treatment to no more than the copyright term granted in the country of origin of the work.

<i>Bridgeman Art Library v. Corel Corp.</i> U.S. legal case on copyright originality

Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191, was a decision by the United States District Court for the Southern District of New York, which ruled that exact photographic copies of public domain images could not be protected by copyright in the United States because the copies lack originality. Even though accurate reproductions might require a great deal of skill, experience and effort, the key element to determine whether a work is copyrightable under US law is originality.

Fair dealing is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. Fair dealing is found in many of the common law jurisdictions of the Commonwealth of Nations.

The copyright law of the United States grants monopoly protection for "original works of authorship". With the stated purpose to promote art and culture, copyright law assigns a set of exclusive rights to authors: to make and sell copies of their works, to create derivative works, and to perform or display their works publicly. These exclusive rights are subject to a time limit, and generally expire 70 years after the author's death or 95 years after publication. In the United States, works published before January 1, 1926, are generally considered public domain.

Substantial similarity, in US copyright law, is the standard used to determine whether a defendant has infringed the reproduction right of a copyright. The standard arises out of the recognition that the exclusive right to make copies of a work would be meaningless if copyright infringement were limited to making only exact and complete reproductions of a work. Many courts also use "substantial similarity" in place of "probative" or "striking similarity" to describe the level of similarity necessary to prove that copying has occurred. A number of tests have been devised by courts to determine substantial similarity. They may rely on expert or lay observation or both and may subjectively judge the feel of a work or critically analyze its elements.

A&M Records, Inc. v. Napster, Inc., 114 F.Supp.2d 896 (2000), was the district court case which preceded the landmark intellectual property case of A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (2001). The case was heard by Judge Marilyn Hall Patel of the United States District Court for the Northern District of California. Napster appealed this case to United States Court of Appeals for the Ninth Circuit.

<i>Arista Records LLC v. Lime Group LLC</i>

Arista Records LLC v. Lime Group LLC, 715 F. Supp. 2d 481, is a United States district court case in which the Southern District of New York held that Lime Group LLC, the defendant, induced copyright infringement with its peer-to-peer file sharing software, LimeWire. The court issued a permanent injunction to shut it down. The lawsuit is a part of a larger campaign against piracy by the Recording Industry Association of America (RIAA).

<i>Columbia Pictures Industries, Inc. v. Redd Horne, Inc.</i>

Columbia Pictures Industries, Inc. v. Redd Horne, Inc., was a copyright infringement case of the United States Court of Appeals for the Third Circuit over the playing video cassettes in-store of a video sale and rental store. The appeals court affirmed the decision of the district court to grant the plaintiffs' motion for summary judgment and enjoin defendants from exhibiting plaintiffs' copyrighted motion pictures.

Warner Bros. Entertainment v. WTV Systems is a 2011 copyright infringement case decided in United States District Court, C.D. California.

<i>Wolk v. Kodak Imaging Network, Inc.</i>

Wolk v. Kodak Imaging Network, Inc., 840 F. Supp. 2d 724, was a United States district court case in which the visual artist Sheila Wolk brought suit against Kodak Imaging Network, Inc., Eastman Kodak Company, and Photobucket.com, Inc. for copyright infringement. Users uploaded Wolk's work to Photobucket, a user-generated content provider, which had a revenue sharing agreement with Kodak that permitted users to use Kodak Gallery to commercially print (photofinish) images from Photobucket's site—including unauthorized copies of Wolk's artwork.

<i>Barclays Capital Inc. v. Theflyonthewall.com, Inc.</i>

Barclays Capital Inc. v. Theflyonthewall.com, Inc., 650 F.3d 876, was a case decided in the United States Court of Appeals for the Second Circuit where the Second Circuit, reversing the decision of the US District Court below it, found that the claims of three major financial investment firms against an internet subscription stock news service (theflyonthewall.com) for "Hot-news" Misappropriation under state common law doctrine could not stand, as they were pre-empted by several sections of the Federal Copyright Act.

Penguin Books Ltd. v. India Book Distributors and Others, was a decision of the Delhi High Court issued in 1984. Penguin Books Ltd. of England brought a suit for perpetual injunction against the respondents, India Book Distributors of New Delhi, to restrain them from infringing Penguin's territorial license in 23 books, the subject matter of the suit.

References

  1. 1 2 3 4 5 6 Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153F.3d82 (2d Cir.1998).
  2. 1 2 3 Itar-Tass Russian News Agency v. Russian Kurier, Inc.; also known as "Itar-TASS I", 886F. Supp.1120 , 1131(S.D.N.Y.1995).
  3. 1 2 3 4 Koeltl, J.G. (district judge): Itar-Tass Russian News Agency v. Russian Kurier, Inc. , No. 95 Civ. 2144(JGK), (S.D.N.Y. March 10, 1997). District court's ruling in this case.
  4. ↑ Podshibikhin, L. I.; Leontiev, K. B.: Реализация в Российской Федерации положений Бернской конвенции об охране литературных и художественных произведений [ permanent dead link ] ("The implementation of the Berne Convention in the Russian Federation"), here footnote 14. April 25, 2002; in Russian. URL last accessed 2007-01-25.
  5. ↑ See e.g. Geller, P.E.: International Copyright: An Introduction, §§6(2)-6(3), in Geller, P.E.; Nimmer, M.B. (eds.): International Copyright Law and Practice, INT-221 to INT-253 passim; 2001.
  6. ↑ Partridge, M.V.B.: Choice of Law in International Copyright Disputes Archived 2013-10-21 at the Wayback Machine , 1998. URL last accessed 2006-08-14.
  7. 1 2 3 See e.g. Wiener, J.L. (circuit judge): Alameda Films et al. v. Authors Rights Restoration Corp., Inc., et al., United States Court of Appeals for the Fifth Circuit, No. 01-20869; March 19, 2003. URL last accessed 2006-08-24.
  8. ↑ Johnson, P.: Which law applies? A reply to Professor Torremans , Journal of Intellectual Property Law & Practice 2005 1(1), pp. 71–76. URL last accessed 2006-08-25.
  9. 1 2 U.S. Code: 17 USC 104A. URL last accessed 2006-08-25.
  10. ↑ Casenotes (2007). Copyright Law: Gorman Ginsburg (7th ed.). Wolters Kluwer. p. 146. ISBN   978-0-7355-6176-2.
  11. ↑ FROM ITAR-TASS TO FILMS BY JOVE: THE CONFLICT OF LAWS REVOLUTION IN INTERNATIONAL COPYRIGHT
  12. ↑ Symeon Symeonides (2008). American Private International Law. Kluwer Law International. p. 340. ISBN   978-90-411-2742-6.
  13. ↑ http://kluwercopyrightblog.com/2013/05/28/french-supreme-court-on-52-bc-national-law-determines-who-is-the-copyright-owner/
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