Traditionally, the law governing intellectual property matters has been considered to be strictly territorial: intellectual property rights arise, though creation or registration, in each country for which a work seeks protection; infringements are governed by the laws of the countries where the alleged infringing acts take place. This has tended to mean that the forum, as the place of registration or of infringement, will apply its own substantive intellectual property laws.

But this reflexive and comfortable formula does not describe the full range of choice of law issues, particularly regarding copyright, which is the i.p. branch on which I shall focus. There are two principal areas of tension, one technology neutral, the other technology-prompted. In the technology neutral category come questions regarding the law applicable to ownership of copyright. In the second category I range issues concerning the law applicable to infringements when these occur pervasively and simultaneously through new forms of communications such as satellites and the Internet.

It is important also to recognize that these choice of law issues persist despite the overlay of a well-developed system of international norms imposed by multilateral treaties such as the WTO TRIPs Accord, the Berne Convention, and the Paris Convention. Treaty obligations include minimum standards of protection in addition to the requirement of national treatment (non discrimination against foreign rightowners), but do not as a general rule prescribe applicable law.

To put the issues of ownership and Internet infringement in context, it may help to posit a hypothetical, inspired by current events:

Nestlie, a French rap artist employed by the Franco-American Morendi Music Group, is distressed to learn that her recordings are voluminously "traded" over the worldwide peer-to-peer network Prankster. Prankster supplies its subscribers around the world with the "Insta-Copy" software program, and maintains a website, but does not keep a centralized database; the information necessary to locate files is dispersed throughout the computers of Prankster users. Prankster was created by Bulgarian programmers hired by a Belgian corporation; the Belgian corporation has since been acquired by a Canadian company incorporated on Pitcairn Island.

1. [predicate issue of judicial competence: what forum can hear Nestlie's claim in whole or in part]

2. Nestlie's standing to sue: Given Nestlie's employee status, what law determines whether Nestlie owns the copyright in her recordings?

3. Choice of law rule governing infringement:
   1. Place(s) where unauthorized copies are made? (locations of end user recipients of copies)

   2. Place(s) from which unauthorized copies are made available? (locations of users' computers from which files copied)

   3. Place(s) from which information leading to unauthorized copies is made available? (locations of computers carrying elements of P2P database)

   4. Principal place of business/incorporation of Prankster?