Private Law
mina kavyani; nejadali almasi
Abstract
Publishing literatures and artworks under copyright protection in the internet and the possibility of widespread infringement of these rights by millions of internet users all over the world, raises this important question that “Which law would be applicable in conflict of two or more laws?” ...
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Publishing literatures and artworks under copyright protection in the internet and the possibility of widespread infringement of these rights by millions of internet users all over the world, raises this important question that “Which law would be applicable in conflict of two or more laws?” In addition, “In determination of governing law in copyright infringement in cyberspace, are traditional conflict of laws rules still applicable or new rules are needed in this area”? This article studies the issue by the separation of two assumptions of agreement and disagreement on applicable law in contractual and non-contractual infringement of copyright in cyberspace. In contractual infringement, which has the agreement on the governing law, the procedure of most of the countries and international conventions is, acceptance of principle of will. In contractual infringement in absence of agreement on governing law, different criteria have been adopted which the most important one of them is applying the law of the country which has the closest relation with the contract. In non-contractual infringement which has been agreed on governing law, there are two general viewpoints between lawyers, countries and international regulations. Some don’t accept the principle of will because of the connection of torts with public discipline and others recognize rule of will in determination of the governing law before and after the loss. Finally in assumption of disagreement in non-contractual infringement, which is the most common kind of infringement of these right in cyberspace, among different theories (including Lex Fori, Lex Loci Delicti, Lex Loci Protectionis) the theory of the law of the closest country, has been suggested as the most appropriate solution in order to determine the governing law.
