2010 | 19 | 2 | 381-432
Article title

LAW APPLICABLE TO OBLIGATIONS FROM INTELLECTUAL PROPERTY INFRINGEMENT (Prawo wlasciwe dla zobowiazan z naruszenie wlasnosci intelektualnej)

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This papers deals with the problem of the special conflict rules concerning international infringements of intellectual property rights put forward in the Regulation of the European Parliament and the Council on the Law Applicable to Non-Contractual Obligations ('Rome II'). These are Articles 8 and 13 of the Rome II. In these articles the term intellectual property rights means copyright, related rights, the sui generis right for the protection of databases and industrial property rights. The Rome II recognizes the fact that copyright and other intellectual property rights have their own special and universally accepted rules, with which the general rules on non-contractual obligations are not compatible. The first paragraph of Article 8, which refers to national intellectual property rights, therefore, establishes that 'the law applicable to a non-contractual obligation arising from an infringement of a intellectual property right shall be the law of the country for which protection is sought'. The second, regarding 'a unitary Community industrial property right' - indicates that the corresponding EU regulations shall be applied, while any aspects excluded from their scope will be governed by the 'the law of the Member State in which the act of infringement is committed'. On the basis of Article 13 these rules are extended to the infringement arising from other events than torts. Additionally the application of this law cannot be changed by the parties since, contrary to other matters governed by Rome II, they do not have the possibility set out in Art.14 of choosing the law applicable to such infringement. These solutions are based on the universally recognized principle of the law of the country in which protection is claimed (lex loci protectionis). This rule, also known as the 'territorial principle', enables each country to apply its own law to the infringement of an intellectual property right that is in force in its territory. The introduction of a uniform rule on conflicts of law in Rome II should eliminate one of the main reasons for forum shopping. On the other, it facilitates the subsequent recognition and execution, in all of the EU Member States, of judicial decisions on intellectual property right infringements adopted by national courts. Unfortunately, the wording of Article 8 may seem to be ambiguous, which may lead to different interpretations in identical cases. This is particularly important in cases of infringements of intellectual property rights committed through modern means of communication, in particular the Internet. It is difficult to determine the law of the country where the violation was committed because of the difficulties in localizing the infringement. As a consequence Art. 8 should be challenged for not incorporating a specific solution for intellectual property right infringements when the effects are felt in several member States. The conclusion of the paper is that the introduction of the 'lex loci protectionis' rule in the Rome II should be in general welcomed. That solution, however is not entirely satisfactory.
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  • Marek Swierczynski, Uniwersytet Kardynala Stefana Wyszynskiego w Warszawie, Wydzial Prawa i Administracji, Katedra Prawa Cywilnego i Prawa Prywatnego Miedzynarodowego, ul. Wóycickiego 1/3, 01-938 Warszawa, Poland
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