چکیده:
The inevitable conflict between two principles، territoriality of Intellectual Property Law and Internet being placeless at the stage of enforcement، has affected the determination of the applicable law on an action claimed to be infringing; especially in Copyright for which registration is not a requirement. This situation has caused the principle of territoriality to become weak in determining the applicable law. On the other hand، international and regional conventions، which discuss determining the applicable law، regard traditional infringement in a physical context; thus rely on the principle of territoriality. As a result، considering the uncertainty regarding territoriality، this principle cannot be applied in Copyright infringement cases in the placeless environment of Internet. So most countries are obliged to recourse toward general principles in order to determine the applicable law. Since there is no single procedure (approach) among countries of the world، and most definitely implementation of individual solution cannot help resolving the issue، it is most clear that the laws must become unified، in order to preserve the benefits of parties of a lawsuit. Therefore، this paper is put together in order to pave the path from an incoherent jurisdiction to an international and comprehensive Copyright protection.
خلاصه ماشینی:
Also, according to Article 14 of this convention, liability arising from infringement of intellectual property is considered an exception to the principle of freedom of contract, and based on paragraph 3 of Article 8, the authority to determine the governing law for these claims is explicitly denied to the parties.
In criticizing this law as a conflict-of-law rule in the internet environment, some believe that applying the law of the country of origin as the governing law in copyright infringement lawsuits is inconsistent with Article 5 of the Berne Convention, which considers protection regardless of whether the country of origin protects it or not.
However, in cases where a person, ignoring the intellectual property rights of another previously identified by a competent law, denies or violates their rights, the liability arising from this act and the guarantee of enforcement related to these rights fall within the scope of non-contractual obligations and, according to Article 8 of the Rome II Convention, are subject to the provisions of this convention (Almasi & Afzali Mehr, 2007: 20).
2. It should be noted that according to paragraph 3 of Article 8 of this convention, and the claim of copyright infringement is an exception to this general rule, and instead, the law of the country protecting the work governs, but due to the inability to apply the law of the protecting country in the internet environment, the general rules have been examined.
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