Law Applicable to Copyright

Law Applicable to Copyright

A Comparison of the ALI and CLIP Proposals

Rita Matulionytė

This book discusses the problems of applicable law in international copyright infringement cases and examines the solutions proposed to them in the recent projects by the American Law Institute and the European Max Planck Group for Conflict of Laws and Intellectual Property.

Chapter 6: De Minimis Rule

Rita Matulionytė

Subjects: law - academic, comparative law, intellectual property law

Extract

Draft CLIP Proposal Article 3:602: De minimis rule (1) A court applying the law or the laws determined by Article 3:601 shall only find for infringement if (a) the defendant has substantially acted or has taken substantial preparatory action to initiate or further the infringement in the State or the States for which protection is sought, or (b) the activity by which the right is claimed to be infringed has substantial effect within, or is directed to the State or the States for which protection is sought. (2) The court may exceptionally derogate from that general rule when reasonable under the circumstances of the case. A. RULE AND ITS ORIGIN The draft CLIP Proposal provides the other rule important for copyright infringements – a so called ‘de minimis’ rule. Under the de minimis rule, the infringement could be found only in that protecting country where the defendant substantially acted (or undertook preparatory action), where the substantial effects were felt, or in the country to which the activities were directed.1 The underlying goal of the rule is to prevent the application of the law of a state where the conduct or effects are minimal, and thereby, limit the number of potentially applicable laws. For instance, when a broadcast signal is emitted in country A and received in countries B and C, with a little accidental reception in country D, no infringement under D’s law may be found, because the reception in country D was insignificant (overspill effect). A similar ‘effect...

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