The Law Applicable to Unregistered IP Rights After Rome II
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The Law Applicable to Online Copyright Infringements in the ALI and CLIP Proposals: a Rebalance of Interests Needed?*
Rita Matulionyte The Law Applicable to Online Copyright Infringements in the ALI and CLIP Proposals: A Rebalance of Interests Needed?* by Rita Matulionyte, Hannover LL.M. (Munich) IP research fellow at the Institute for Legal Informatics, Leibniz University of Hannover. Abstract: The article discusses the problems of appli- a compromise between the territoriality and univer- cable law to copyright infringements online. It firstly sality approaches suggested in respect of ubiqui- identifies the main problems related to the well es- tous infringement cases. At the same time; the paper tablished territoriality principle and the lex loci pro- draws the attention that the interests of “good faith” tectionis rule. Then; the discussion focuses on the online service providers (such as legal certainty and “ubiquitous infringement” rule recently proposed by foreseeability) have been until now underestimated the American Law Institute (ALI) and the European and invites to take these interests into account when Max Planck Group for (onflicts of Law and Intellec- merging the projects into a common international tual Property !( IP). The author strongly welcomes proposal. Keywords: applicable law; copyright; Internet; ALI; CLIP; ubiquitous infringement; territoriality © 2011 Rita Matulionyte Everybody may disseminate this article by electronic means and ma e it available for do!nload under the terms and conditions of the "i#ital $eer $ublishin# %icence &"$$%'. A co)y of the license te*t may be obtained at htt)+,,nbn-resolvin#( de,urn+nbn+de+000.-d))l-v/-en0( Recommended citation: Rita Matulionyte, 2he %aw A))licable to 3nline 4o)yri#ht Infrin#ements in the A%I and 4%IP $ro)osals: A Rebalance of Interests Needed?, 2 (2011) JI$I2EC 26, para. -
Jurisdiction and Governing Law Rules in the European Union
Jurisdiction and Governing Law Rules in the European Union Contents Introduction 1 Recast Brussels Regulation (EU 1215/2012) 2 Rome I Regulation (EC 593/2008) 4 Rome II Regulation (EC 864/2007) 6 Main exceptions 8 016 2 Further information If you would like further information on any aspect of jurisdiction and governing law rules in the European Union, please contact a person mentioned below or the person with whom you usually deal. Contact Ivan Shiu, Partner T +44 (0)20 7296 5131 [email protected] Giles Hutt, Professional Support Lawyer T +44 (0)20 7296 5483 [email protected] This note is written as a general guide only. It should not be relied upon as a substitute for specific legal advice. Jurisdiction and Governing Law Rules in the European Union January 2016 1 Introduction For any commercial organisation, ensuring that a how the rules work, and giving details of key provisions. dispute is tried in a forum that is both convenient and To help practitioners spot similarities and differences business-friendly is often critical: it can greatly increase between the Regulations, which dovetail with each the chance of achieving a successful outcome, and other, rules are grouped by colour according to their doing so in a reasonable time frame and at reasonable subject matter. So, for example, rules governing the expense. The law governing legal obligations is also scope of a Regulation appear in dark green boxes; crucial, of course. Unfortunately it is not always those dealing with party choice appear in blue boxes; straightforward to work out which court or courts are and 'escape' clauses (a prominent feature of the Rome free (or obliged) to try a case, and what law they will Regulations) are shown in white boxes. -
Reports of Cases
Report s of C ases JUDGMENT OF THE COURT (Sixth Chamber) 31 January 2019 * (Reference for a preliminary ruling — Judicial cooperation in civil matters — Law applicable to non-contractual obligations — Regulation (EC) No 864/2007 (Rome II) — Articles 16 and 27 — Overriding mandatory provisions — Directive 2009/103/EC — Civil liability insurance for motor vehicles — Article 28) In Case C-149/18, REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunal da Relação de Lisboa (Court of Appeal, Lisbon, Portugal), made by decision of 20 December 2017, received at the Court on 26 February 2018, in the proceedings Agostinho da Silva Martins v Dekra Claims Services Portugal SA, THE COURT (Sixth Chamber), composed of C. Toader, President of the Chamber, A. Rosas and M. Safjan (Rapporteur), Judges, Advocate General: H. Saugmandsgaard Øe, Registrar: A. Calot Escobar, having regard to the written procedure, after considering the observations submitted on behalf of: – the Portuguese Government, by L. Inez Fernandes, M. Figueiredo, P. Lacerda, L. Medeiros and P. Barros da Costa, acting as Agents, – the Spanish Government, by L. Aguilera Ruiz and V. Ester Casas, acting as Agents, – the European Commission, by M. Wilderspin and P. Costa de Oliveira, acting as Agents, having decided, after hearing the Advocate General, to proceed to judgment without an Opinion, gives the following * Language of the case: Portuguese. EN ECLI:EU:C:2019:84 1 JUDGMENT OF 31. 1. 2019 — CASE C-149/18 DA SILVA MARTINS Judgment 1 This request for a preliminary ruling concerns the interpretation of Articles 16 and 27 of Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) (OJ 2007 L 199, p. -
The Rome II Regulation the Law Applicable to Non-Contractual Obligations
©2009 Andrew Dickinson Not to be re-published in any form without permission The Rome II Regulation The Law Applicable to Non-Contractual Obligations Andrew Dickinson www.romeii.eu First Online Supplement – May 2009 Author’s Introduction This supplement focuses on developments since October 2008. In particular, in the absence of judicial consideration of the Regulation’s provisions following its application date (11 January 2009), it draws attention to legislation implementing the Regulation in the United Kingdom, to recent ECJ cases concerning other EC private international law instruments, to new decisions of the English courts concerning the pre-Regulation rules of applicable law, and to recent books and journal articles. There is an ever growing body of literature on the Regulation, in the form of both books and articles. As is to be expected, the authors consider a wide array of issues and express widely diverging views on many of those issues. It is, of course, no more legitimate to resolve difficult or controversial questions by counting the number of supporters for a particular position than it is to determine the law applicable to a non-contractual obligation by numerically listing the number of contacts to a particular country or its law. Accordingly, the references in the following commentary to the views of other writers are intended to facilitate access to their reasoning on specific points, whether in line with or opposed to the reasoning in the main work, rather than attempts to buttress or weaken the author’s position on those points by citation alone. Notes A second cumulative supplement to Dicey, Morris & Collins, The Conflict of Laws (14 th edn, 2006) was published in December 2008. -
IP and Applicable Law in Recent International Proposals
IP and Applicable Law in Recent International Proposals IP and Applicable Law in Recent International Proposals: Report for the International Law Association by Rita Matulionytė, Vilnius, Dr. iur. (Munich and Freiburg), LL.M. IP (Munich), deputy director at the Law Institute of Lithuania Abstract: The report compares applicable law against particular solutions suggested in the propos- rules to intellectual property (IP) disputes as pro- als. This report was presented in the 1st meeting of posed in the recent international projects(ALI, CLIP, the Committee on Intellectual Property and Private Transparency, Kopila and Joint Japanese-Korean pro- International Law of the International Law Associa- posals). Namely, it identifies the differences among tion (15-17 March 2012, Lisbon) and is expected to proposals, reveals the underlying reasons of differ- contribute to the merge of current international pro- ing rules, looks at how particular issues have been posals into a single international initiative. until now solved at international and national levels, and finally, overviews the main arguments for and Keywords: Intellectual property, applicable law, conflict of laws, lex loci protectionis, lex originis, initial ownership, ubiquitous infringement, party autonomy © 2012 Rita Matulionytė Everybody may disseminate this article by electronic means and make it available for download under the terms and conditions of the Digital Peer Publishing Licence (DPPL). A copy of the license text may be obtained at http://nbn-resolving. de/urn:nbn:de:0009-dppl-v3-en8. This article may also be used under the Creative Commons Attribution-Share Alike 3.0 Unported License, available at h t t p : // creativecommons.org/licenses/by-sa/3.0/. -
Conflict-Of-Laws Rules Governing Copyrights in TV Format
Conflict-of-Laws Rules Governing Copyrights in TV Format Anna Y. Ananeva1; Oksana V. Lutkova2; Sergey Y. Kashkin3 1,2,3Kutafin Moscow State Law University (MSAL), Moscow, Russian Federation. Abstract The paper aims at finding and formulating conflict-of-laws principles governing TV format copyright relations. To achieve the goal, we used a vague range of methods standard for jurisprudence, e.g. formal- legal, comparative-legal, sociological, and legal modeling methods. As a main result, in comparison with the threads of copyrights conflict-of-laws regulation, we identified the groups of aspects of format issues that have been and have not been brought before courts yet, turned up and explained the approaches to the choice of law usually used by the courts, established in the documents of non-governmental organizations, and proposed our own approach. Moreover, we formulated a cascade of conflict-of-laws rules suitable for finding the proper jurisdictions in TV format contract relations in the absence of choice made by the parties. The paper is the first try to comprehend the issue of conflict-of-laws regulation of format copyright relations. Key-words: Copyright Law, International Private Law, Intellectual Statute, Contract Statute, Audio Visual Work Format. 1. Introduction Audiovisual work formats are widespread intellectual property (IP) in the modern world. They are usually defined as a set of distinctive characteristics of a TV program, making it recognizable and distinguishable by the audience, and therefore competitive among other equitable TV programs (LANE, 1992). The characteristics allow recreating a program that proved to be engaging in one country according to local cultural features of another country and minimizing the risks arising from developing a program from scratch. -
Volume 10, Issue 2, August 2013
Volume 10, Issue 2, August 2013 INTERNATIONALISATION OF FOSS CONTRIBUTORY COPYRIGHT ASSIGNMENTS AND LICENSES: JURISDICTION- SPECIFIC OR “UNPORTED”? Axel Metzger * Abstract Some of the major Free and Open Source (FOSS) projects use contributory copyright assignments and licenses to clarify the ownership of developer's contributions and to allow the project to grant sublicenses and enforce copyright claims in case of license violations. The paper gives an overview of typical provisions of these agreements and provides an analysis of the private international law principles applicable in Europe, United States, and Japan. As a conclusion, the paper suggests an internationalisation strategy for FOSS projects. FOSS copyright assignments and licenses should implement choice-of-law clauses to foster legal certainty for projects. DOI: 10.2966/scrip.100213.177 © Axel Metzger 2013. This work is licensed under a Creative Commons Licence. Please click on the link to read the terms and conditions. * Dr. iur. (Munich and Paris), Dr. iur. habil. (Hamburg), LL.M. (Harvard), Professor of Law at Leibniz (2013) 10:2 SCRIPTed 178 1. Introduction The legal questions raised by Free and Open Source Software (FOSS) licenses have been the subject of an intense international debate among legal scholars and practising lawyers since the late 1990s.1 Courts in different jurisdictions have confirmed that the core features of FOSS licenses are compliant with the respective applicable laws and thus enforceable in the respective jurisdictions.2 This significant interest in the legal relationship between programmers and users of FOSS (“outbound licenses”) is in remarkable contrast to the disregard legal scholars have shown for the legal relationships between programmers and the organisations behind FOSS projects. -
Kyoto Guidelines
Kyoto Guidelines: Applicable Law International Law Association’s Guidelines on Intellectual Property and Private International Law (“Kyoto Guidelines”): Applicable Law by Marie-Elodie Ancel, Nicolas Binctin, Josef Drexl, Mireille van Eechoud, Jane C Ginsburg, Toshiyuki Kono, Gyooho Lee, Rita Matulionyte, Edouard Treppoz, Dário Moura Vicente Abstract: The chapter “Applicable Law” of the registered rights is governed by the lex loci protec- International Law Association’s Guidelines on In- tionis whereas the law of the closest connection is tellectual Property and Private International Law applied to determine the ownership of copyright. For (“Kyoto Guidelines”) provides principles on the choice contracts, freedom of choice is acknowledged. With of law in international intellectual property matters. regard to ubiquitous or multi-state infringement and The Guidelines confirm the traditional principle of the collective rights management in the field of copyright, lex loci protectionis for the existence, transferabil- the Guidelines suggest innovative solutions. Finally, ity, scope and infringement of intellectual property the chapter contains a Guideline on the law applica- rights. The law applicable to the initial ownership of ble to the arbitrability of disputes. © 2021 Marie-Elodie Ancel, Nicolas Binctin, Josef Drexl, Mireille van Eechoud, Jane C Ginsburg, Toshiyuki Kono, Gyooho Lee, Rita Matulionyte, Edouard Treppoz and Dário Moura Vicente Everybody may disseminate this article by electronic means and make it available for download under the terms and conditions of the Digital Peer Publishing Licence (DPPL). A copy of the license text may be obtained at http://nbn-resolving. de/urn:nbn:de:0009-dppl-v3-en8. Recommended citation: Marie-Elodie Ancel, Nicolas Binctin, Josef Drexl et al., Kyoto Guidelines: Applicable Law, 12 (2021) JIPITEC 44 para 1 A. -
New Private International Law in Korea 267 New Private International Law in Korea
〔Kyung-Han Sohn 〕 New Private International Law in Korea 267 New Private International Law in Korea Kyung-Han Sohn *傘* I Introduction The “Sub-Oi-Sa-Beob ”( Conflict of Laws Act of Korea). was enacted on January January 15, 1962 with no major changes until the Amendment of April 7, 2001. 2001. The purpose of the Amendment is to update the old law by incorporat- ing ing recent developments in Korean and international conflict of laws princi- ples. ples. The Amendment was proposed by the Ministry of Justice of Korea and passed passed the National Assembly, e宜ective as of July 1, 2001. The new law is renamed the “Kuk-J e-Sa-Beob ”( Private International Law Act Act or the Conflict of Laws Act, ("new CLA ”) ) better defines the areas which were not su 任iciently addressed in the original act. such as jurisdiction, capac- ity ity to have rights, legitimation. legal person. intellectual property, agency, means of transportation. res in transitu, and security interest in claims. The new CLA also amends some provisions1u which may have been contrary to the the constitutional principle of gender equality. In addition, the new CLA adopts adopts the “Most Closely Connected Country ” rule in determining the gov- erning erning law and uses the concept of the “Habitual Residence ” as a connecting factor. factor. While the CLA broadens party autonomy, it also incorporates provi- sions sions to protect consumers and workers with weak societal and low eco ・ nomic nomic status. Also. the CLA narrowly defines the scope of renvoi which al- lows lows only remission but does not allow transmission in most cases. -
Private International Law 2016
Private international law 2016 PRIVATE INTERNATIONAL LAW 2 JURISDICTION 5 BRUSSELS I BIS REGULATION 10 CHOICE OF COURT AGREEMENTS 15 FORUM CONTRACTUS 31 LIS ALIBI PENDENS 41 ROME I REGULATION 47 CHOICE OF LAW ( BY THE PARTIES) 54 UNIFICATION OF PRIVATE LAW 59 MANDATORY RULES 66 PUBLIC POLICY 72 ROME II REGULATION 77 CROSS - BORDER EMPLOYMENT CONTRACTS 84 CISG – VIENNA S ALES CONVENTION 92 PRIVATE INTERNATIONAL LAW Concept Private international law (also called 'conflict of laws') is a branch of law which aims to provide legal answers to the issues arising out of cross-border private relationships. Such relationships may be civil or commercial : it may concern family relationships (e.g. adoption or a marriage between two spouses having different nationalities), civil issues (e.g. where may the German owner of an apartment located on the French Riviera bring court proceedings against the German family who has rented out his apartment for one week during the summer holidays and neglected to turn the water tap off when they left the premises) and commercial matters (e.g. when a business established in Germany pledges its receivables to a Luxembourg bank in order to guarantee a line of credit, which law should the bank use to verify that the pledge may be opposed to other creditors of the business?). When a private relationship has a cross-border dimension, it touches upon several States. The question arises which of those States is empowered to regulate the relationship. This general question may be fine tuned in three more precise questions: – which court has authority to adjudicate disputes; the same question arises in relation with authorities which are called upon to intervene in non contentious matters, such as e.g. -
Bulgarian Private International Law Code
Bulgarian Private International Law Code Part One BASIC PROVISIONS Chapter One SCOPE OF CODE Subject Matter Article 1. (1) The provisions of this Code shall govern: 1. the international jurisdiction of the Bulgarian courts, of other authorities, and proceedings in international civil matters; 2. the law applicable to relationships at private law with an international element; 3. the recognition and enforcement of foreign judgments and other authentic instruments in the Republic of Bulgaria. (2) Within the meaning given by this Code, "relationship at private law with an international element" shall be a relationship involving two or more States. Closest Connection Principle Article 2. (1) Relationships at private law with an international element shall be governed by the law of the State with which the said relationships are most closely connected. The provisions contained in the Code regarding the determination of the applicable law express this principle. (2) If the applicable law cannot be determined on the basis of the provisions of Part Three herein, the law of the State with which the relationship has the closest connection by virtue of other criteria shall apply. Relations with International Treaties, International Instruments and Other Laws Article 3. (1) The provisions of this Code shall not affect the regulation of relationships at private law with an international element as established in an international treaty, in another international instrument in force for the Republic of Bulgaria, or in another law. (2) Upon application of an international treaty or of another international instrument, regard shall be had to the international character of the provisions thereof, to the qualification established in the said provisions, and to the need to achieve uniformity in the interpretation and application of the said provisions. -
COPYRIGHT INFRINGEMENT in the INTERNET AGE—PRIMETIME for HARMONIZED CONFLICT-OF-LAWS RULES? by Anita B
COPYRIGHT INFRINGEMENT IN THE INTERNET AGE—PRIMETIME FOR HARMONIZED CONFLICT-OF-LAWS RULES? By Anita B. Frohlich† TABLE OF CONTENTS I. INTRODUCTION .................................................................................... 852 II. CHOICE OF LAW AND COPYRIGHT INFRINGEMENT: A PORTFOLIO OF APPROACHES ......................................................... 856 A. THE SITUATION IN THE UNITED STATES ............................................. 856 1. The Ninth Circuit Approach ........................................................ 857 2. The Second Circuit Approach ..................................................... 861 3. Summary ..................................................................................... 863 B. THE SITUATION IN EUROPE ................................................................. 863 1. Great Britain ............................................................................... 864 a) Situation Before Introduction of the Private International Law (Miscellaneous Provisions) Act of 1995 ..................................................................................... 864 b) The Private International Law (Miscellaneous Provisions) Act 1995 and Its Implementation by the British Courts ...................................................................... 866 2. Germany ...................................................................................... 869 3. France ......................................................................................... 872 4. Belgium ......................................................................................