Private international law issues of intellectual property: the online dimension in Belarus

2. In determining which state has the greatest connection with the infringement, the court should take into account all relevant factors, in particular the following:

3. In app the infringer's place of residence;

— the infringer's main place of activity;

— the place where substantial activities in furtherance of the infringement in its entirety have been carried out;

— the place where the harm caused by the infringement is substantial in relation to the infringement in its entirety.

lying the law determined in accordance with paragraph 1 and paragraph 2 of this article, the court must take into account rules and standards of conduct commonly used on the information and telecommunication network which is directly related to the infringement”.

It is expedient to maintain the ratio of lex loci protectionis and criterion of the closest connection, which is traditionally substantiated in the doctrine (Suspitsyna 2013). But, it is necessary to identify general and special norms clearly determining types of relations, exemptions and methods of reference to an applicable law, as well as the degree of court discretion. The conflict of laws rule “lex loci protectionis” is imprecise and does not allow to connect two places, which are of crucial importance for intellectual property rights in private international law, i. e. the place of litigation and the place of afforded and recognised protection.

We consider the multivariate interpretation of the direction of reference, which is thoroughly investigated in the works of scientists (see f. e.: Lutkova 2016; Krupko 2014), the main argument in favour of rejecting it. “Lex loci protectionis” must be abandoned as it does not provide the court a direct indication, but implies a long chain of conclusions. Moreover, this rule competes with some material norms regulating intellectual property relations with a foreign element, including those that take into account a foreign intellectual property law. Thus, it is not for conflict of laws to decide, whether an intellectual property object is protected or not. This question is considered on material norms of imperative nature. While searching the law of the country where or for which protection is sought, the court will constantly be confronted with the need to follow the principle “lex specialis derogat lex generalis”, which was remarkably characterized by V. Kudashkin for material and conflict of laws norms (Kudashkin 2004).

The rule of close connection in the recommended new article works in a different way. It aims to find the connection of the disputed intellectual property relationship with the particular norms and the country, which determines the essence and existence of the relationship. It is necessary to overcome shortages of the principle of territoriality. That is why it works as an exemption. Infringements on the information and telecommunication networks are initially and immanently multi-jurisdictional in its essence. Thus, the recourse to the law of a particular country, firstly, must not be limited by “lex fori” and, secondly, allow the application of self-regulatory rules. The third paragraph of the proposed new article reflects tendencies in private international law to broaden the cumulative and alternative techniques of conflict of laws linkage. As it is mentioned by Wilhelm Wengler, such an approach in reality can favour one party over the other (Wegler 1963, 832). But, we proceed from the assumption that cumulation is permissible in favour of relations in general, taking into account the circumstances of its occurrence. In the formulated scheme, it provides a combination of different types of sources of legal regulation (national law and usages). Cumulation with reference to the rules of the online environment is especially important. These rules appear due to the self-regulation. They clarify issues that are absent in national laws or perhaps shall not be regulated by national laws at all due to overly complicated and specific technical matters. For example, the rules and standards of conduct commonly used on the information and telecommunication network may be taken into account in relation to quotations, citation, indication of an author, and other issues of “good faith” with regard to digital rights, for example use of a work in a certain electronic form.

Conclusions

Conflict of laws regulation in digital economy must provide an opportunity to overcome the contradiction between the essential unity of the object of intellectual property and the multiplicity of forms of its legal protection in several jurisdictions. In the circumstances of a particular case, the application of foreign intellectual property laws may prove decisive for the legal fate of the relationship. The formulation of various rules for finding an applicable law for intellectual property relations should be based on a specific goal. Belarus has specific interests in access to the knowledge for the purpose of innovation, scientific and technological development and material norms on intellectual property express the goals of public policy. In such circumstances, the principle of territoriality is of paramount importance both for material and conflict of laws regulation. The economic rationale for “lex fori” (in a precise wording “the law of the Republic of Belarus”) is that intellectual property is the monopoly permissible under the prescriptions of national legislation, which limits free access to modern achievements in science, culture, art, etc. Each state correlates the level of its economic development with the rules of protection of intellectual property rights concerning types of protectable intellectual property objects, term of protection, rules on enforcement, etc. At the same time, the territorial character of the intellectual property rights acquired abroad does not mean that within Belarusian jurisdiction the signs of the existence of these rights should not be taken into account. It especially concerns online intellectual property relations immanently connected with several jurisdictions and relying on the self-regulation capacity of the digital environment.

References

1. Baranovskiy, Petr D. 2005. International legal problems of protection of intellectual property on the Internet). Moscow, Moskovskaia gosudarstvennaia iuridicheskaia akademiia Publ. (In Russian)

2. Bliznets, Ivan A. ed. 2018. Intellectual Property Law. International legal regulation. Moscow, Iurait Publ. (In Russian)

3. Christie, Andrew F. 2017. “Private international law principles for ubiquitous intellectual property infringement -- a solution in search of a problem?” Journal of Private International Law 13(1): 152183. doi:10.1080/17441048.2017.1304047.

4. Christie, Andrew F. 2015. Private International Law Issues in Online Intellectual Property Infringement Disputes with Cross-Border Elements: An Analysis of National Approaches. Geneva, WIPO. Accessed April 12, 2018. www.wipo.int/edocs/pubdocs/en/wipo_rep_rfip_2015_1.pdf.

5. Dinwoodie, Graeme B. 2009. “Developing a Private International Intellectual Property Law: The Demise of Territoriality?” William & Mary Law Review 51(2): 711-800. Accessed April 12, 2018. http//www.ssrn. com/link/oxford-legal-studies.html.

6. Dubay, Carolyn. A. 2012. “Private International Law Discourse: The Legacy of Friedrich Carl von Savigny”. International Judicial Monitor. Accessed April 12, 2018. www.judicialmonitor.org/ archive_spring2012/ privat einternation allawdiscourse.html.

7. Edwards, Lilian. 2011. “The Role of Internet Intermediaries in Advancing Public Policy Objectives Forging Partnerships for Advancing Policy Objectives for the Internet Economy, Part II”. SSRN. Accessed April 15, 2018. http://dx.doi.org/10.2139/ssrn.1875708.

8. Krupko, Svetlana. 2014. “Conflict of laws aspects of intellectual property regulation”. Khoziaistvo i pravo 11: Prilozhenie. (In Russian)

9. Kudashkin, Vladimir V 2004. Actual issues of private international law. Moscow, Volters Kluver Publ. (In Russian)

10. Lundstedt, Lydia. 2016. Territoriality in intellectual property law: A comparative study of the interpretation and operation of the territoriality principle in the resolution of transborder intellectual property infringement disputes with respect to international civil jurisdiction, applicable law and the territorial scope of application of substantive intellectual property law in the European Union and United States. Stockholm, Stockholm University.

11. Lutkova, Oksana V 2016. “Principles of legal regulation of transboundary copyright relations”. Vestnik Univer. Im. O.E. Kutafina 12 (28): 63-92. (In Rus.)

12. Petz, Thomas. 2012. “Ubiquitous Infringement”. Intellectual property and private international law: Comparative perspectives, 217-346. Oxford, Hart.

13. Ruse-Khan, Henning G. 2017. The protection of intellectual property in international law. Oxford, Oxford University Press.

14. Sergo, Anton G. 2011. The legal regime of domain names and its development in civil law. Moscow, Rossiiskii gosudarstvennyi institut intellektual'noi sobstvennosti Publ. (In Russian)

15. Shugurova, Irina V 2010. “The territorial principle of intellectual property rights: the main trends”. Sovre- mennoe pravo 10: 76-81. (In Russian)

16. Sitdikova, Roza I., Ruslan B. Sitdikov. 2018. “Digital rights as a new kind of property rights”. Imushchestven- nye otnosheniia v RF 9(204): 75-80. (In Russian)

17. Suspitsyna, Mariia V 2013. Conflict of laws regulation of intellectual property relations. Moscow, Moskovskaia gosudarstvennaia iuridicheskaia akademiia Publ. (In Russian)

18. Terletskiy, Vasilii V. 2003. Protection of copyright and related rights when using protected objects in digital networks and multimedia products. Moscow, Rossiiskii gosudarstvennyi institut intellektual'noi sobst- vennosti Publ. (In Rus.)

19. Wegler, Wilhelm. 1963. “The significance of the principle of equality in the conflict of laws”. Law and Contemporary Problems 28(4): 822-859.

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