| The maturity of Internet technology maturity causes explosive growth of the incidence of network copyright infringement cases.And as borderless as the network it is,this form of infringement,which often with foreign element,gave rise to a series of problems in conflict of laws.The contradiction between protecting intellectual property rights and promoting international exchange of culture works and technology slows down the progress of achieving network copyright unified substantive law,so the burden of solving the problem of applicable law network copyright infringement concerning foreign affairs falls on domestic conflict laws of each country.The promulgation of Law of Application of Laws in Civil Matters Involving Foreign Elements,is a milestone in the history of the development of conflict of laws in our country.By absorbing the international advanced legislative experience,this law makes a reasonable transplanting of laws,as well as bold innovation.As to the problems of application of laws of intellectual property,the legislators listed them separately in chapter 7 of this law,involving ownership and content of intellectual property rights,transfer and licensing contract,and tort liability,which attaches importance to the issue of legal application in this field.Due to the complexity of the intellectual property rights involving foreign elements,however,this law still has defects in dealing with the practical problems.Considering the foreign network copyright infringement,it is not hard to find that the emergence of brand new Internet technology,such as cloud computing,has upended the general analysis method of network infringement to a certain extent.Given this,if the courts still stubbornly stick to the idiomatic connection factor when determining the applicable law of such legal issues,they will fail to allocate the responsibility and interest between the parties properly,which eventually impedes the input and output of the one country's intellectual property rights,and gets itself under-developed in the flow of the booming knowledge economy.Based on this,this article pays close attention to the paradigm value of foreign network copyright infringement,which combined with the act of Law of Application of Laws in Civil Matters Involving Foreign Elements,trying to explore feasible approach about the problem of the applicable law of foreign network copyright infringement from multiple perspectives.In the first part of this article,I point out that the problem of law applicable to foreign network can be summarized as two dilemmas in today's environment:one is the traditional connection factor's failure,another is the hysteresis of choice of law method.Then with the analysis of Article 50 of Law of Application of Laws in Civil Matters Involving Foreign Elements,I revealed the main reason why the law fails to solve the problem of the applicable law of foreign network copyright infringement,so I can provide solutions accordingly,which I'll discuss below.In the second part,from the macro view,I establish a logical premise for foreign network copyright infringement applicable law,namely "segmentation theory".As to Law of Application of Laws in Civil Matters Involving Foreign Elements,the legislators didn't make any difference involving the nature and the content of intellectual property rights.It appears to reduce burden of judges,but using same connection point for different problems often leads to aggravation imbalances of parties' profit and reality expectations,therefore,only by dividing the intellectual property rights into different types can problems as complex as foreign network copyright infringement solved comprehensively and accurately.After taking "segmentation theory" as the major premise,in the third part,I will set about identify the connection factors of foreign network copyright infringement one by one.Connection factors,as core link in logical deduction,is also an important basis for finding the applicable law.Although foreign network copyright infringement poses a challenge to the value of traditional connection factor,it doesn't mean we should abandon them completely.A scientific method must comprehensively combined the general rules with new types of connection factors under the network environment.Starting from the fourth part,I will discuss the method of choice of law.Agreement to choose law of court after the occurrence of infringement is provided in Article 50 of Law of Application of Laws in Civil Matters Involving Foreign Elements,which reflects the spirit of autonomy of will in the provisions of Article 44.But we should also note that the autonomy will is strictly limited in Article 50,which on the one hand helps distinguish "the law of court" with "the law where the protection is claimed",on the other hand gives full consideration to the particularity of intellectual property rights.In my opinion,to protect the extraterritorial interests of copyright owner more effectively,when it comes to the applicable law of foreign network copyright infringement,the range of selection can moderately expand.In the fifth part,I illuminate the doctrine of the most significant relationship,which Article 50 of Law of Application of Laws in Civil Matters Involving Foreign Elements ignores,is a irreplaceable method of choice of law recognized by practice to deal with the problem of Internet copyright infringement applicable law concerning foreign affairs.Although this principle faces many blame,we should always make it clear that learning advanced ideas itself is a kind of process involving modification and internalization,so the endless debate about the potential defects is meaningless.So far,to explore the solution for Internet copyright infringement applicable law,I utilize "segmentation theory" as premise,apply connection factor identification as the core,and wield the principle of party autonomy and most significant relationship principle as method.The research of Internet copyright infringement applicable law concerning foreign affairs still in the initial stage in our country,so I hope to take this opportunity to raise awareness of other scholars,making progress together,and do what an international private law students should do to promote the development of conflict law of our country. |
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