Choice of law and copyright ownership : an interest-based analysis under special consideration of New Zealand and German law

Abstract

This paper analyses the legal implications of private international law of initial copyright ownership considering the special characteristics of systems in the copyright tradition, such as New Zealand, as well as in the author's rights tradition, such as Germany. Due to the increasing global distribution of information and copyrighted works across borders and the digital revolution, which allows the instant and world-wide exploitation via the internet at almost zero costs, the question of which law determines the initial owner of copyright is of utmost importance. This is not only true for courts that have to deal with international copyright litigation, but also for licensees that need to know for sure whether they negotiate with the one and only copyright owner. As international harmonisation of substantive law of copyright ownership seems a distant prospect, reasonable, fair and predictable choice of law provisions are necessary in order to fulfil the expectations of the parties involved. However, even if territoriality seems to disappear in practice, international copyright and the predominant choice of law rules are still built on the principle of territoriality. That is why this paper examines the appropriateness of a territorially-based choice of law approach, considering not only the general aspects of choice of law and the main principles that underlie the field of copyright, but also the interests of the parties involved in the copyright process. It is argued that as regards copyright authorship and ownership, a single law approach based on the principle of universality is appropriate. A universal approach taking into account the diverse interests involved serves not only the efficiency and legal certainty, but also the unhampered distribution of copyrighted works, which has a positive effect for all parties involved: the creators, the exploiters and the users. It will be pointed out that a basic conflict of law rule for authorship and initial ownership must be connected with the habitual residence of the natural creator at the time of the creation process, while different interest-based rules must be developed for works created in special circumstances. Ultimately, a system of complex and tiered rules will be recommended. These rules are the attempt to bridge the gap between the two great copyright law systems, striving to meet not only the needs of the copyright system, but also the needs of the author's rights system.