Private International Law Aspects of User-Generated Content

Private international law enters the picture whenever two or more states are involved in a particular set of acts or events relating to intellectual property, and the relevant laws of those states differ. In copyright, the Berne Convention permits states to protect copyright to different standards above the required minimum, and permits states to enact exceptions to copyright that, subject to certain conditions, may differ from those of other states. Canada's new provision in section 29.21 of the Copyright Act, creating a right to use existing works to make user-generated content has no counterpart elsewhere and so potentially creates issues of private international law. This article takes user-generated content as the starting-point for a discussion of what these private international law issues may be. It explores the different national laws that can apply to particular acts of infringement, the national courts in which these laws may be enforced, and the practical implications of this legal pattern for those who make user-generated content, focusing on those who make it in Canada.