Applicable law in copyright infringement cases
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Abstract
The question which law should be applied in copyright infringement cases is of first importance, because of many disparities still existing in national copyright laws on the one hand and great number of transnational copyright disputes on the other. The aim of the article is to identify which law should apply in copyright infringement cases and to what issues. In order to achieve this aim multilateral and bilateral international treaties, European Union laws, national laws and domestic and foreign case law is analyzed.
First part of the article deals with qualification requirement, which is embedded in Lithuanian Law on Authors and Neighbouring rights and international copyright and related rights treaties. This requirement identifies persons which are eligible to copyright protection in Lithuania. Although qualification requirement is directly linked with copyright infringement cases in which foreign element are present, this requirement has independent meaning and does not point to any particular law which should apply.
Second part of the article turns to find appropriate choice of law rule. Beginning with Berne convention four different views are distinguished: Berne convention points to the law of the country of origin (lex originis); to the law of the country where the court is seized (lex fori); to the law of the country for which protection is claimed (lex protectionis); and, finally, that international treaties do not establish choice of law rules for copyright infringement altogether. In practice preference is given to the law of the country for which protection is claimed (lex protectionis). This rule in copyright infringement cases means the law of the country in which work or other object is illegally used.
The same lex protectionis rule for infringement of intellectual property rights was established by Regulation (EC) No 864/2007 of the European Parliament and of the Council on the law applicable to non contractual obligations. Finally, Article 1.53 of Lithuanian civil code, arguably, also points to lex protectionis rule. But the Supreme Court of Lithuania interprets Article 1.53 of Civil code as lex fori rule.
Article concludes that lex fori rule is not an appropriate choice of law rule in copyright infringement cases and argues that lex protectionis should prevail at least to decide the question of copyright existence and scope.
First part of the article deals with qualification requirement, which is embedded in Lithuanian Law on Authors and Neighbouring rights and international copyright and related rights treaties. This requirement identifies persons which are eligible to copyright protection in Lithuania. Although qualification requirement is directly linked with copyright infringement cases in which foreign element are present, this requirement has independent meaning and does not point to any particular law which should apply.
Second part of the article turns to find appropriate choice of law rule. Beginning with Berne convention four different views are distinguished: Berne convention points to the law of the country of origin (lex originis); to the law of the country where the court is seized (lex fori); to the law of the country for which protection is claimed (lex protectionis); and, finally, that international treaties do not establish choice of law rules for copyright infringement altogether. In practice preference is given to the law of the country for which protection is claimed (lex protectionis). This rule in copyright infringement cases means the law of the country in which work or other object is illegally used.
The same lex protectionis rule for infringement of intellectual property rights was established by Regulation (EC) No 864/2007 of the European Parliament and of the Council on the law applicable to non contractual obligations. Finally, Article 1.53 of Lithuanian civil code, arguably, also points to lex protectionis rule. But the Supreme Court of Lithuania interprets Article 1.53 of Civil code as lex fori rule.
Article concludes that lex fori rule is not an appropriate choice of law rule in copyright infringement cases and argues that lex protectionis should prevail at least to decide the question of copyright existence and scope.
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Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
