Harvard International Law Journal

The oldest and most-cited student-edited journal of international law, the Harvard International Law Journal covers a wide variety of topics in public and private international law.

Intellectual Property and Cyberlaw

The Enforcement of Foreign Copyright Judgments in U.S. Courts and the First Amendment

Filed Under: Recent Developments, Student Commentaries, Student Features

“This Note aims to use the Viewfinder decision as a starting point to consider more broadly the enforcement of foreign copyright judgments. It will caution against the temptation to summarily refuse to enforce foreign copyright judgment as inherently incompatible with the First Amendment. This Note will argue that the Second Circuit was correct in evaluating the foreign copyright judgment in conjunction with American copyright law, rather than solely through the lens of the First Amendment. Foreign copyright decisions, governed under their own intellectual property legal frameworks, should not go through the same analysis as libel and hate speech decisions, which fall at the center of First Amendment protections. Domestic copyright laws already include built-in protections, such as the doctrine of fair use, to ensure that First Amendment values are preserved. Courts should thus evaluate foreign copyright judgments by comparing the protections provided by the foreign countries’ intellectual property frameworks to domestic intellectual property laws.

“Current scholarship on the enforcement of foreign copyright decisions, including the Viewfinder decision, is limited. Some scholars have written on the enforcement of foreign judgments, looking more broadly at First Amendment implications, but none have focused on copyright cases in the aftermath of Viewfinder. This lacuna is unfortunate, because it suggests that foreign copyright judgments do not merit their own analysis, but rather fall within the same category as other foreign judgments implicating the First Amendment. Indeed, scholars writing on the subject of foreign judgments have treated the Viewfinder case as just another example of domestic courts addressing the First Amendment’s effect on foreign judgments. As this Note suggests, this analysis is flawed, because several reasons, including the increasing harmonization of intellectual property laws across countries, militate in favor of the enforcement of foreign copyright judgments that do not apply to the other foreign cases implicating the First Amendment which have come before courts. Furthermore, Viewfinder highlights the complexity of applying the First Amendment in the age of the internet, where speech is no longer territorially bound and content emanating from one country often reaches a global audience.”

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Offensive Economic Espionage?

Filed Under: Other Symposia, Symposia

Concluding that the law enforcement model for preventing cyberespionage is ineffective, this article proposes a modified strategy that expands the process of responding to online economic espionage by allowing retaliation by a victim after it had analyzed the attack and determined with the necessary level of confidence that it came from a particular nation-state and, if possible, that it originated from a particular source. If the victim could, at a minimum, determine the location from which the attack originated, offensive economic espionage would allow it to launch a responsive act of economic espionage against an appropriate entity in the host state.

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International Law in Cyberspace: The Koh Speech and Tallinn Manual Juxtaposed

Filed Under: Student Features

In 2011, the White House issued the International Strategy for Cyberspace, which noted that “[t]he development of norms for state conduct in cyberspace does not require a reinvention of customary international law, nor does it render existing international norms obsolete.  Long-standing international norms guiding state behavior—in times of peace and conflict—also apply in cyberspace.”  However, the document cautioned that the “unique attributes of networked technology require additional work to clarify how these norms apply and what additional understandings might be necessary to supplement them.”

On September 18, 2012, State Department Legal Adviser Harold Koh took an important step towards publically elucidating the U.S. positions on how international law applies to cyberspace. At a conference sponsored by United States Cyber Command (USCYBERCOM), Mr. Koh offered brief answers to what he labeled the “fundamental questions” on the issue.  He also identified several “unresolved questions” with which the United States would likely be forced to grapple in the future.  Since the speech had been fully cleared in the interagency process, it can be viewed as reflecting the U.S. Government’s views on the issues, not just those of Mr. Koh or the State Department.

The timing of the speech was propitious.  Less than three weeks earlier, NATO’s Cooperative Cyber Defence Centre of Excellence (CCD COE) had released a draft the long-awaited Tallinn Manual, due for formal publication in early 2013.  The Manual is the product of a three-year project sponsored by the Centre in which an “International Group of Experts” examined, inter alia, the very issues cited in the Koh Speech.  Participants included distinguished legal academics and practitioners, supported by a team of technical experts.  USCYBERCOM, the International Committee of the Red Cross, and NATO each provided an observer who participated actively throughout the project, albeit in a non-voting capacity.

The Tallinn Manual consists of “rules” adopted unanimously by the International Group of Experts that are meant to reflect customary international law, accompanied by “commentary” that delineates their legal basis and highlights any differences of opinion among the Experts as to their interpretation in the cyber context.  A select group of peer reviewers offered comments on the various drafts, as did a number of states that were willing to informally and unofficially do so.  The author served as Director of the Project.

The relative congruency between the U.S. Government’s views, as reflected in the Koh speech, and those of the International Group of Experts is striking.  This confluence of a state’s expression of opinio juris with a work constituting “the teachings of the most highly qualified publicists of the various nations” significantly enhances the persuasiveness of common conclusions. Of course, the limited differences that exist as to particular points of law render the respective positions on those points somewhat less compelling.

This article serves two purposes.  First, it functions as a concordance between the positions articulated in the Koh speech and those found in the Tallinn Manual.  The comparison is particularly apropos in light of the parallels in their content.  Second, drawing on the Tallinn Manual, the article provides analytical granularity as to the legal basis for the positions proffered in the Koh Speech.  In doing so, it usefully catalogues the various competing interpretive perspectives.  The article is crafted around Mr. Koh’s “Questions and Answers,” which are reordered topically and set forth at the beginning of each section.

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Making Intellectual Property Work for Global Health

Filed Under: Other Symposia, Symposia

Intellectual property rights (IPRs) are often conceived narrowly from the vantage point of offering incentives for private sector investment in research and development (R&D), but the legal regime of IPRs can also work to improve access to public goods for global health, particularly for those disadvantaged by destitution and disease. The WHO Global Strategy and Plan of Action on Public Health, Innovation and Intellectual Property (GSPOA), adopted by the World Health Assembly in 2008, calls for an “enhanced and sustainable basis for needs-driven, essential health research and development relevant to diseases that disproportionately affect developing countries.”1 How knowledge is generated, owned, and harnessed to support pro-poor development is at the heart of this effort. New approaches to tiering, pooling, and open-source collaboration have resulted from the struggle to deliver affordable treatments for AIDS and neglected diseases. In examining how intellectual property rights can most effectively and strategically support developing countries in implementing this ambitious and potentially catalytic agenda in enabling innovation for global health, this paper seeks to outline a coherent and strategic approach to address human development needs and to facilitate the harnessing of innovation and the sharing of knowledge for global health.

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Three Ways of Thought About Enforcement of Intellectual Property Rights

Filed Under: Other Symposia, Symposia

For more than two decades, the Office of the U.S. Trade Representative (USTR) has been using the tools of trade policy to encourage U.S. trading partners to provide adequate and effective protection and enforcement of intellectual property rights (IPR). That effort has both involved and inspired considerable discussion by governments and private actors on the meaning, determinants, and importance of adequate and effective IPR protection.
This essay explores one aspect of that discussion—the determinants of effective protection—by considering three commonly held beliefs about the path to overcoming the failure of a country’s intellectual property laws to provide adequate and effective protection. Each of these ideas posits a determinant of effective IPR enforcement: The first is domestic economic interest, the second is the rule of law, and the third is political will. I aim to briefly critique each of these ideas, propose a way of fitting them together, and extrapolate a general prescription.

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