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1 Kwartalnik Prawa Prywatnego
1 Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)

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

100%

Swierczynski M.

Kwartalnik Prawa Prywatnego

2010

tom 19

nr 2

381-432

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.

VPLYV ÚNIOVÉHO PRÁVA NA MEDZINÁRODNÝ RÁMEC PRÁVNEJ ÚPRAVY ZODPOVEDNOSTNÝCH VZŤAHOV JADROVÉHO PRÁVA

86%

Novotná M. , Varga P.

Právny obzor. Teoretický časopis pre otázky štátu a práva (Juridical Review. Theoretical journal for the questions of state and law)

2015

tom 98

nr 2

128 – 148

The paper deals with the civil law relationships for the nuclear damage caused by the nuclear incident that are, due to their specific character and potential cross-border consequences, regulated by means of international law. The emphasis in the paper is put on questions of the potential application and limits of the European Union (“EU”) legislation, represented by the Regulation Brussels I that is applicable to legal nuclear liability relations (eventually, their procedural aspects by application of this right by legitimate subjects) and mutual relationships between the Regulation and international nuclear liability conventions as well as questions of definition of concrete rules setting the jurisdiction of courts in matters of nuclear damages where the Regulation Brussels I may be applicable. An attention is given also to the question of potential application of the Regulation Rome II to legal relationships of nuclear damages and to the legal relationships that are closely connected with the nuclear damage compensation, though these are not directly regulated by international nuclear liability conventions.