The Law Applicable to Online Copyright Infringements in the ALI and CLIP Proposals: A Rebalance of Interests Needed?

Abstract

The article discusses the problems of applicable law to copyright infringements online. It firstly identifies the main problems related to the well established territoriality principle and the lex loci protectionis principle. Then, the discussion focuses on the “ubiquitous infringement” rule recently proposed by the American Law Institute (ALI) and the European Max Planck Group for Conflicts of Law and Intellectual Property (CLIP). The author welcomes a compromise between the territoriality and universality approaches suggested in respect of ubiquitous infringement cases. At the same time, the paper draws the attention that the interests of “good faith” online service providers have been until now underestimated and invites to take these interests into account when merging the projects into a common international proposal.

Keywords: Applicable law, choice of law, conflicts of law, copyright, Internet, ALI, CLIP, ubiquitous infringement, territoriality