Jon O. Newman

“ Defendants' experts presented a very different view of the rights of newspapers. Professor Peter B. Maggs of the University of Illinois, Urbana-Champaign, College of Law, testifying by deposition, pointed out that Article 11 (2) gives authors the exclusive rights to their articles and accords newspaper publishers only the "exclusive rights to the publication as a whole, because that's the only thing not reserved to the authors." ”

“ It simply requires that the country in which protection is claimed must treat foreign and domestic authors alike. Whether U.S. copyright law directs U.S. courts to look to foreign or domestic law as to certain issues is irrelevant to national treatment, so long as the scope of protection would be extended equally to foreign and domestic authors.↑ Other pertinent provisions are: Section 2 (2) , which provides: "The obligations of the United States under the Berne Convention may be performed only pursuant to appropriate domestic law." ”

“ II. Determination of Ownership Rights Under Russian Law Since United States law permits suit only by owners of "an exclusive right under a copyright," 17 U.S.C. §501 (b) , we must first determine whether any of the plaintiffs own an exclusive right. That issue of ownership, as we have indicated, is to be determined by Russian law.
Determination of a foreign country's law is an issue of law. ”

“ Law on Copyright and Neighboring Rights ("Russian Copyright Law") (World Intellectual Property Organization (WIPO) translation) concerning what the United States Copyrights Act calls "works made for hire," 17 U.S.C. §201 (b) . See Russian Copyright Law, Art. 14 (2) . That provision gives employers the exclusive right to "exploit" the "service-related work" produced by employees in the scope of their employment, absent some contractual arrangement. However, the Court noted, Article 14 (4) specifies that subsection 2 does not apply to various categories of works, including newspapers. ”

“ The conflicts issue is which country's law applies to issues of copyright ownership and to issues of infringement. The primary substantive issue under Russian copyright law is whether a newspaper publishing company has an interest sufficient to give it standing to sue for copying the text of individual articles appearing in its newspapers, or whether complaint about such copying may be made only by the reporters who authored the articles. Defendants-appellants Russian Kurier, Inc. ”

“ That opinion had been sought by the editor-in-chief of one of the plaintiffs in this litigation, Moskovskie Novosti ( Moscow News ) , who specifically called the tribunal's attention to the pending litigation between Russian media organizations and the publisher of Kurier. The Informational Disputes Chamber stated, in response to one of the questions put to it, [3] "In the event of a violation [**13] of its rights, including the improper printing of one or two articles, the publisher [of a newspaper] has the right to petition a court for defense of its rights." ”

“ Moreover, when, during the trial, counsel for the defendants objected to a question concerning the "appearance" of some copied text on the ground that " [t] here is no allegation [] in this case about the creative appearance being infringed," counsel for the plaintiffs replied, "That is, indeed, one of our central arguments." Moreover, though the parties do not raise the issue, we may assume that the authors of the articles, by submitting them to their newspaper publishers, gave the publishers an implied license to use the articles in the newspaper compilations. ”

“ See Jane C. Ginsburg, Ownership of Electronic Rights and the Private International Law of Copyright, 22 Colum.-VLA J.L. & Arts 165, 171 (1998) . We agree with Prof. Ginsburg and with the amicus, Prof. Patry, that section 104A (b) should not be understood to state an exception to any otherwise applicable conflicts rule. See Ginsburg, id.; Brief for Amicus Curiae at 14-17.↑ The Berne Convention expressly provides that " [o] wnership of copyright in a cinematographic work shall be a matter for legislation in the country where protection is claimed." ”

“ In the absence of any indication that either the first or second meanings were intended, we prefer the third understanding.↑ Newcity sought to analogize the exclusive rights that he believed were held by both the newspaper and the author to the rights held jointly by co-authors. Russian copyright law, however, like similar provisions elsewhere, recognizes jointly held rights in "a work that is the product of the joint creative work of two or more persons." Russian Copyright Law, Art. ”