Burundi: Copyright Infringer?

The Central African country of Burundi was sued on April 26th in the Central District of California for copyright infringement. Here is a link I created to the complaint, which has pictures of plaintiff's work (a photograph) and the infringing work (paper currency). Burundi is a landlocked country (somewhat smaller than Maryland but with 8 million people) sandwiched between Rwanda, Tanzania, and the Democratic Republic of the Congo. About 90% of the population are subsistence farmers. Exports consist overwhelmingly of coffee and tea. Only 1 in 2 children go to school, and 1 in 10 adults has HIV/AIDS.

According to the CIA Factbook, Burundi's first democratically elected President was assassinated in 1993 after only 100 days in office. This set off widespread violence between Hutu and Tutsi factions, with an estimated 200,000 deaths in 12 years. A power-sharing agreement in 2003 lead to a new constitution and majority Hutu government headed by President Nkurunziza in 2005. Burundi has, it is fair to say, issues, but it is surprising that one of them is infringement by virtue of a blatant, unauthorized reproduction of a photograph on its 10,00 Franc note. (See the pictures in the complaint provided in the above link).

Plaintiff is Kelly Fajack, a freelance photographer who, in March 2002, took a picture of children in a Burundian school. This year, he discovered, much to his amazement, that his photo had been reproduced as the reverse side of the Burundian 10,000 Franc note. Fajack's complaint states: "While Fajack has no desire to punish or force a payment from an impoverished nation, he reasonably suspects the involvement and misconduct of unknown third parties. Because the Republic of Burundi has not responded to requests for official credit, information regarding how they came to use the Photo, and assistance in recovering a reasonable license fee, Fajack brings this action for copyright infringement and negligence."

There are signficicant hurdles to the suit besides the Burundian government's apparent decision to ignore Mr. Fajack: one is the Foreign Sovereign Immunity Act, found in chapter 97 of title 28 USC. Two provisions are relevant, 28 USC 1604, which states that "a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 and 1607," and the exceptions in section 1605. Section 1605(2) - which covers commercial activity - is problematic, because while issuing currency might seem like a commercial activity, that activity neither occurred in the United States nor is likely to fairly be said to have a direct effect in the United States: the amount of Burundi 10,000 franc notes circulating in the U.S. must be very very small.

Section 1605(3) covers rights in violation of international law where the property in question" is present in the United States in connection with a commercial activity carried on in the United States by the foreign state." This includes a requirement that the cause of action be based upon the commercial activity in the United States. It is very unlikely this exception applies, for the same reasons given with Section 1605(2).

There is an even more general reason both exceptions are likely to fail, the Supreme Court's opinion in Republic of Argentina v. Weltover, Inc., 504 U.S. 607, 614 (1992), which construed "commercial activity" within the meaning of the exception as the types of activities private parties engage in, something that definitely does not include issuing official currency. See also Saudi Arabia v. Nelson, 113 S.Ct. 1471 (1993).

There have been a tiny number of cases construing the FSIA and copyright infringement. In Leutwyler v. Office of Her Majesty Queen Rania Al-Abdullah, 184 F. Supp.2d 277 (S.D.N.Y. 2001), a photographer was commissioned to take, in Jordan, pictures of the Queen. A dispute broke out and suit was brought in Manhattan. Judge Gerard Lynch, in a very thorough opinion, refused to dismiss the copyright claim based on use of the photograph in the Kingdom's "Jordan Diary," a publication distributed in the United States. That activity was deemed to at least state a cause of action for commercial activity.

In Los Angeles New Service v. Conus Communications Co, Lt. P'ship, 969 F. Supp. 579 (C.D. Cal. 1997), the Canadian Broadcasting Company argued that the FSIA barred suit (the FSIA also covers agents or instrumentalities of a foreign state) for its "unintended and unavoidable" transmission of signals into the United States. The court had no problems in rejecting the CBC's claim, finding it was engaged in commercial activity.

Finally, in Intercontinental Dictionary Series v. de Gruyter,822 F. Supp. 662 (C.D. Cal. 1993), the Australian National University claimed immunity under the FSIA for its compilation of materials for a linguistic dictionary. In a strained interpretation of the statute, the court held that the activity was "academic" not commercial, and dismissed the case.

There is a second, big problem to the suit, namely lack of subject matter jurisdiction. My cursory, non-expert reading of the FSIA is that it is not an independent grant of subject matter jurisdiction, but instead a provision dealing with immunity from suits based on subject matter jurisdiction otherwise established. In the case of the Burundi government, that basis would be the Copyright Act. But the Copyright Act does not apply extraterritorially, at least to activity that was initiated and which occurs wholly overseas. Burundi itself, according to the Copyright Office's Circular 38a is not a member of any international copyright treaty, although it did join the WTO in 1995. One would assume suit in Burundi against the government would be most unlikely. The government should, instead, provide Fajack with the information and credit he has requested.