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Immaterialgüter- und Wettbewerbsrecht

Justifying overriding mandatory rules in copyright law

The project is aimed at examining the field of law applicable to copyright and in particular, the operation of the overriding mandatory rules of lex loci protectionis and lex fori in civil law countries, focusing on the values and functions of copyright protective rules and their justifications.

Last Update: 09.12.14

Several developments in copyright law call for examination of the role and function of overriding mandatory provisions. There are some national cases (e.g. French and Italian) in which domestic rules on author’s moral rights were applied regardless of the fact that the legal relationship that was at issue in the court proceedings was governed by another law (usually US law). For instance, it was held that the domestic law rather than the US law is applicable to the issue of transferring author’s moral rights. They usually referred to concept of ordre public or loi de police.

 

The EU has introduced two conflict-of-law sources (the Rome I and Rome II Regulations) which give effect to overriding mandatory provisions. The respect of these provisions is regarded as crucial by a country for safeguarding its public interests, such as its political, social or economic organisation, so they are applicable irrespective of the law otherwise applicable to the legal relationship. Such provisions can be found in intellectual property law, such as those on author’s moral rights, however insufficient effort was put into justifying such characterisation. Judicial reasons also of the fail to be precise about that. Perhaps judges feel confident relying on traditional perception, but such perception needs to be re-evaluated against the background of current social, economic and political environment.

 

This leads to the fact that globalised and digitized environment is strongly dominated by the US industry. It seems to be “transmitting” to other countries its own laws and regulations along with the intellectual products. The process of “transmitting” US laws to other countries happens, not by virtue of drafting new legislation, but by means of use of US legal forms and formats in the transactions which have strong connections to another (European civil law) country. This especially affects the countries in transition since before the 1990s they did not have such strong practices in IP law, so they tend to take the US contracts and forms for their domestic transactions.

 

Described developments demonstrate the need to examine in depth the issue of application of overriding mandatory provisions in copyright cases, by means of evaluating their social and economic functions. This includes identifying overriding mandatory provisions and their underlying values, functions, objectives and purposes for the social, economic and political organisation of the enacting country.

Persons

Project Manager

Ivana Kunda

Main Areas of Research

Territorialität und ihre Bedeutung für das Internationale Immaterialgüterrecht