interpretation and ensures that the United States complies with its international obligations under the Berne Convention.
4.1 The Presumption against Extraterritoriality
It is a "longstanding principle of American law 'that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.'"[1] This principle was famously applied in the EEOC v Arabian Oil Co (Aramco) case, and was recently cited with approval and applied by the United States Supreme Court in Morrison v National Australia Bank 130 S. Ct. 2869 (2010). The Morrison court stated:
This principle represents a canon of construction, or a presumption about a statute's meaning, rather than a limit upon Congress's power to legislate, see Blackmer v. United States, 284 U. S. 421, 437 (1932). It rests on the perception that Congress ordinarily legislates with respect to domestic, not foreign matters. Smith v. United States, 507 U. S. 197, n. 5 (1993). Thus, "unless there is the affirmative intention of the Congress clearly expressed" to give a statute extraterritorial effect, "we must presume it is primarily concerned with domestic conditions." Aramco, supra, at 248 (internal quotation marks omitted). The canon or presumption applies regardless of whether there is a risk of conflict between the American statute and a foreign law, see Sale v. Haitian Centers Council, Inc., 509 U. S. 155, 173–174 (1993). When a statute gives no clear indication of an extraterritorial application, it has none.[2]
Similarly, the Court in Aramco stated:
Our conclusion today is buttressed by the fact that 'when it desires to do so, Congress knows how to place the high seas within the jurisdictional reach of a statute.' Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 440 (1989). Congress' awareness of the need to make a clear statement that a statute applies overseas is amply demonstrated by the numerous occasions on which it has expressly legislated the extraterritorial application of a statute.[3]
As a matter of policy, extraterritorial application of domestic law is contrary to the principle of democratic rule that has its basis in the idea of the consent of the governed.[4]
There is nothing in the section 101 definition of "United States work" that evinces a clear intention on the part of Congress that section 411 will have extraterritorial effect. Each of the paragraphs of subsection (1) (relating to published works) has a clear and explicit connection to the United States – (A) applies to publication in the United States, (D) requires, for works published outside of the United States, that all of the authors be nationals, domiciliaries or habitual residents of the United States, and (B) and (C) require that the work has been published in the United States simultaneously with its publication elsewhere.
- ↑ EEOC v. Arabian American Oil Co., 499 U. S. 244, 248 (1991) (Aramco) (quoting Foley Bros., Inc. v. Filardo, 336 U. S. 281, 285 (1949).
- ↑ Morrison v. National Australia Bank Ltd., 130 S. Ct. 2869 (2010), 2878.
- ↑ EEOC v. Arabian American Oil Co., 499 U. S. 244, 258 (1991).
- ↑ See further, Mark P. Gibney, The Extraterritorial Application of U.S. Law: The Perversion of Democratic Governance, the Reversal of Institutional Roles, and the Imperative of Establishing Normative Principles, 19 B.C. Int'l & Comp. L. Rev. 297, 305 (1996).
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