15.029 Hague Convention to Wired

From: by way of Willard McCarty (willard@lists.village.Virginia.EDU)
Date: Mon May 21 2001 - 01:34:43 EDT

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                    Humanist Discussion Group, Vol. 15, No. 29.
           Centre for Computing in the Humanities, King's College London

             Date: Mon, 21 May 2001 06:28:00 +0100
             From: lachance@chass.utoronto.ca (Francois Lachance)
             Subject: The Hague Convention

    Willard and subscribers interested in international coypright law,

    Being situated in a work environment where I am surrounded by lawyers,
    some of whom do policy development in the area of private international
    law, I have the benefit of drawing upon collegial good favour for the
    explication of some finer points that sometimes get glossed over in the
    discoursive twitching practiced by _Wired_. I pass on, with permission,
    the following intervention that may or may not get circulated by _Wired_.


    Here is a note I sent to Wired yesterday in response to its article on
    this issue. Much of the concern is harebrained, and much of the rest is
    ill-informed. There may be the nucleus of some potential problems, but
    it's far from apocalyptic.

    Four comments about the apparent concerns about the Hague work on
    enforcement of judgements:

    Please say which Hague Convention you mean, at least the first
    time out. There are a lot of them, most of them not controversial. If you
    say "the proposed Hague Convention on enforcement of judgments", then we
    can situate it better. For the first several paragraphs of the article it
    sounded as if you meant some new convention on copyright. WIPO does
    copyright conventions, not The Hague.

    The proposed Convention deals with the enforcement of civil
    judgments. This means that member countries do not have to ban things
    that other member governments ban. It means that if someone gets a
    judgment in one member country for infringement of copyright, then other
    member countries would have to enforce it, if the country of the original
    judgment properly took jurisdiction over the case. The grounds for taking
    jurisdiction are the subject of continuing debate (with the U.S. arguing
    for broad jurisdiction and Europe arguing for more limited jurisdiction,
    interestingly enough.)

    The remedies a country can impose to enforce a foreign judgment
    are those available in the enforcing country, not those that the
    originating country might have had available. If a U.S. court would not
    in a U.S. case impose a duty on an ISP to filter content to prevent
    further infringement, then it won't do that under the Convention either.
    If it might do that in a domestic case, then it might do it under the
    Convention too.

    The obligation on any member country to enforce a judgment from
    another member country is subject to an override based on public policy of
    the enforcing country. So if it is totally reprehensible in the U.S. to
    enforce some foreign judgment because of, say, First Amendment principles,
    the Convention will give a way out. This is however a narrow exemption,
    not a discretionary one.

    The text of the draft Convention and supporting documents can be found at
    the Hague Conference on Private International Law's web site,
    http://www.hcch.net/e/workprog/jdgm.html .


    As has cropped up in the past in repostings of information : consider the

    Francois Lachance, Scholar-at-large
    20th : Machine Age :: 21st : Era of Reparation

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