A Study On The Private International Law Issues Of Copyright

In the past, the field of copyright law was viewed as not involving any conflict of laws and every country would only apply its own copyright laws, since traditional legal notions always emphasize the territoriality of intellectual property law. Although some authors had expounded upon the resolution of copyright conflicts in their doctrinal writings with foresight as early as in the beginning of 20th century, national legislators began to make copyright conflict rules after the 1950s. By virtue of the sharp contrast between the author's right tradition of the Continental Law System, which stresses respect for the author's natural rights, and the copyright tradition of the Anglo-American Law System, which takes the economic benefits in exploiting works as a priority consideration, the solution of copyright conflicts still poses problems nowadays for the judicial bodies of each country. This dissertation researches into these problems, hoping to contribute some enlightening ideas to the legislative and judicial bodies, by discussing the solutions of international copyright disputes with historic, comparative and positve research methods. Apart from introduction and conclusions, this dissertation is devided into five chapters.In the opening part "Introduction", the differences between "author's right" and "copyright" are enunciated in order to properly use the two concepts in the dissertation. Besides, this part outlines the research significance of the current subject, surveys the status quo in this research field and lists the research approaches employed in the dissertation.Chapter One makes an overall depiction of the forms of copyright conflicts and the ways to solve these conflicts. Section One enumerates nine forms of copyright conflicts. And Section Two analyses the two resolutions of copyright conflicts, substantive law approach and conflict law approach. It is pointed out that the international efforts to make uniform treaties dating from the latter half of 19th century, did not extinguish the copyright conflicts of laws, making conflict law approach an inevitable choice. Section Three lists the domestic legal sources and makes some comments on the domestic judicial practice of trying copyright cases involving foreign elements.Chapter Two canvasses the exercise of jurisdiction of international copyright disputes. First, the present provisions on this problem in international conventions and domestic legislations are reviewed. In the second place, the dissertation made detailed analysis of three types of jurisdiction, including the exlusive jurisdiction, declined jurisdiction and parallel jurisdiction in the light of overseas judicial practice, legislations and academic viewpoints. The last section of this chapter summarizes the constructive suggestions on coordinating jurisdictions in international copyright disputes put forward by international organizations and academic research bodies, and brings forth some bold personal opinions on the principles of asserting jurisdiction in view of domestic realistic needs.Chapte Three explores the application of laws in international copyright disputes. Section One first reviews the traditional conflict rules developed in domestic choice of law process, e.g. lex loci protectionis, lex loci delictis, lex loci actus, lex fori, lex originis, the law under which the right is entitled, etc., and sets out the choice of law methods recently developed such as the doctrine of the most significant relationship, principle of party autonomy, functional analysis, favor principle. Departing from the necessity of designing different conflict rules according to the intrinsic nature of different types of international copyright disputes, Section Two discusses the application of laws in international copyright infringement, contract and ownership disputes respectively, and makes some comments on the present provisions of "Law of the Application of Law for Foreign-related Civil Relations of the People's Republic of China", pointing out the shortcomings of these provisions.Chapter Four expounds on some general private international law issues that might arise at the trial of foreign copyright cases. Adopting positivist analysis method, the author inspects the characterisation, preliminary question and public order problem in foreign copyright cases, and concludes that these mechanisms allow for more flexible choice for judiciary judgment, sometimes as safeguards for just results of the cases and sometimes for substantial benefits of the forum state. Drawing a lesson from the case of ETS, GMAC of the United States v. Beijing New Oriental Language School, the dissertation holds that the absence of preliminary question rule in the "Law of the Application of Law for Foreign-related Civil Relations of the People's Republic of China", is a regretting careless omission.Chapter Five probes into the jurisdiction and application of law issues in copyright infringement cases against the background of Internet Age. Comparing the radical innovation proposition with the moderate reform proposition, the author agrees with the latter viewpoint. It is held that, based on the traditional jurisdiction and application of law rules, some changes or explanations of these rules must be made in view of Internet copyright disputes' different characteristics from traditional copyright disputes, e.g. the revision of the foreign elements standard in Internet copyright cases, the redefinition of the country of origin and the flexible interpretation of the applicable laws in transnational Internet copyright infringement cases.In the closing part "Conclusions", the dissertation advances the author's designing of jurisdiction and conflic rules for domestic foreign copyright cases. It is suggested that exclusive jurisdicion rule not be adopted, instead, the jurisdiction of the defendant's habitual residence and the place of the infringement should be the basic principles for jurisdiction assertion. Besides, parties' rights to designate forum state should be respected. To face the challenge of some country's exercise of exorbitant jurisdicion in international copyright cases, Chinese courts should make some proper adjustments to the defendants from relevant foreign countries in the exercise of jurisdiction. While designing the copyright conflict rules, legislators should make margin for applying the law of the country of origin.Viewing on the whole, the resolution of foreign copyright disputes should adapt to the private international law's developing trend, i.e. from conceptualism toward functionalism. Apart from making more flexible conflict rules, we can utilize some basic mechanisms of private international law such as the characterisation of legal relationships, choice of law in preliminary questions, reservation of public order in the process of applying conflict rules with certain objectives.