Choice-of-law Rules in International Copyright Disputes zhao.pdf · Overview The Statute on the Law...
Transcript of Choice-of-law Rules in International Copyright Disputes zhao.pdf · Overview The Statute on the Law...
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Choice-of-law Rules in International Copyright Disputes
- a Chinese perspective
CO-REACH Utrecht WorkshopUtrecht, 28 April 2011
Ning Zhao LL.M.PhD fellow, the University of Groningen
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OverviewThe Statute on the Law Applicable to Foreign-
related Civil Relations
• before
- choice-of-law rules and judicial practice
- exsiting problems and their causes
• now
• conclusions
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Sources of Choice-of-law Rulesin Copyright Disputes
• the General Principles of Civil Law
• the SPC opinions or rules
• international treaties
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The Role of International Treaties (1)• there are no specific provisions in Chinese national
law on their legal status
• they do have binding force in domestic law in certain
situation, except for those provisions to which China
has made reservations
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The Role of International Treaties (2)
• Tsuburaya (Japan) v. Guangzhou Lianhe Electronic Clock Factory (Guang Dong Province High Court, 2002)
dispute over Ultraman Image and Ultraman Clock
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The Role of International Treaties (3)
essence of the case: does a three-dimensional work (Ultraman clock) constitute reproduction of a two-dimensional image (Ultraman)?
• 1990 Chinese Copyright Law: no!• both courts were guided by the Berne Convention
and held that the defendant’s acts infringed the plaintiff’s reproduction right
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Applicable Law
• no specific choice-of-law rules for copyright disputes
• infringement may be covered by the choice-of-law rules for tort claims
– lex loci delicti– common home state exception
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Cases (1)
which choice-of-law rule was applied?
those courts applied:- lex loci delicti - lex loci protectionis, or- the closest connection rule
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Cases (2)- lex loci protectionis
• Gorden Dryden (New Zealand) v. Li Hua Education and others (Beijing High Court, 2000)
held: since the place where the plaintiff claimed copyright protection is in China, Chinese law determines the authorship, contents, scope and infringement of the alleged copyright
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Cases (3)- lex loci delicti
• Warner Music Hong Kong Ltd v. Kun Ming Haoledi Entertainment Ltd (Yun Nan Province High Court)
Dispute over showing plaintiff’s MTV in a way of karaoke
held: since the place of infringement (showing the MTV) was in China, Chinese law applies to the issues of initial ownership, existence, contents, infringement and remedies
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Cases (4)
95% of the cases did not mention choice-of-law problem. They demonstrate that there are two main approaches leading to the application of Chinese law:
• direct application of Chinese law, or• via references to the Berne Convention or the
TRIPS Agreement
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Existing Problems
• no clear and consistent choice-of-law rules
• no choice-of-law analysis
• no application of foreign law
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Why is there no choice-of-law analysis?
• lack of awareness of choice-of-law issues
• misunderstanding of national treatment as a choice-of-law rule
• strict understanding of “territoriality”
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Why is foreign law never applied?
• no necessity of applying foreign laws
• result of the application of choice-of-law
• the judiciary’s natural preference for forum law
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New Statute (1) ownership and contents (Art. 48)
lex loci protectionis
1st draft: national law of the creator
2nd draft: lex loci protectionis or
lex originis
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New Statute (2)
infringement of copyright (Art. 50)
lex loci protectionis or
party autonomy- ex post choice for lex fori
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New Statute (3) transfer of copyright (Art. 49)
party autonomy;
or else, - the doctrine “characteristic performance”,
or- the closest connection
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Conclusionscharacteristics:
- respecting “territoriality” principle
- recognising choice-of-law problem
- possibility of applying foreign law
- ensuring uniform application
- introducing party autonomy
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Still…for considerations:
- scope of the Statute
- scope of party autonomy
- multi-States infringement disputes
- “characteristic performance”