Today’s marketplaces for creative products are anything but homogeneous. Products, actors, structure – virtually any market for products of the human mind (seen in light of potential copyright protection) is unique and in flux. Yet, legal doctrine still offers a largely uniform level of rights protection. Such monolithic invariance is the root of many problems, namely a ubiquitous tendency of over-protection. So far, much of the discussion neglects the reality of modern copyright. What is required, therefore, is a closer look at the specific circumstances of the many real-world scenarios. Indeed, looking at this book’s many examples, where non-conventional subject matter of copyright can be found, provides for a rich and inspiring object of analysis – in particular under an economic lens.
Tim W. Dornis
Tim W. Dornis
The issue of jurisdiction for negotiorum gestio claims is more than complex. By definition, the parties have not concluded a contract. In most cases, there has been no tortious or delictual conduct, nor can unjust enrichment be found. Hence, since none of the heads of special jurisdiction in Art. 7 Brussels Ibis Regulation applies, the conclusion seems to be that negotiorum gestio claims must be brought under Art. 4 Brussels Ibis Regulation, at the respective defendant’s domicile. However, this would be too simple a solution. As a closer look unveils, the doctrine of negotiorum gestio is determined by conflicting considerations of individual freedom and public interest. Although the exact balancing will depend on the national lawmakers’ preferences, agreement exists that the principal’s domain of private autonomy must be demarcated against the intervenor’s unsolicited (yet possibly utile) interference by a distinct allocation of claims and counterclaims for disgorgement, compensation and reimbursement. As in substantive law, this divergence of interests is also reflected in civil-procedural law, namely with regard to the determination of jurisdiction. Accordingly, negotiorum gestio’s multiple scenarios must not be categorized uniformly as ‘matters relating to a contract’ or as ‘matters relating to a tort, delict or quasi-delict’. Nor can the doctrine’s claims be assigned in toto to Art. 4 Brussels Ibis Regulation. Instead, jurisdiction must be allocated in accordance with the doctrine’s different substantive law segments.