Copyright goes global
The Internet and globalisation have made business more and more international. This tendency is clearly visible in copyright, because of its usually universal objects (like art, literature, computer programs, databases) and intangible character, which often facilitates its spread. From software developers and computer games producers, through ebooks publishers, to e-commerce, literally every business dealing with copyright is moving global. And widespread access to the Internet speeds up this process even more.
This process provokes the question which country’s law should we apply when making contracts internationally. The problem is even more vital, since international treaties on copyright left this issue to national jurisdictions, which means there are hardly any common international rules that regulate copyright contracts.
In this article, we make overview how the law handles such international contracts and what are the general rules in this matter.
What is conflict of laws and how to handle it?
International copyright contracts are contracts connected with laws of different countries. It happens, for example, when a copyright owner (licensor) from Poland wishes to transfer (license) its copyright to a person from Greece. In such situations it is necessary to determine which law applies to the contract: Polish, Greek or maybe some other.
Problems like that are governed by specific rules called conflict of laws or private international law. They can be defined as a set of principles determining which law applies to a matter connected with more than one jurisdiction.
When we are looking for the right jurisdiction, we should start from a national law. Virtually every country has its own rules regulating conflict of laws. They can be found in domestic acts, international agreements concluded by a given country (bilateral, that is between two countries, or multilateral, that is between more than two countries) and, if the country is the EU member, the EU law.
In Poland these rules can be found mostly in the act of 4 February 2011 Private international law and the European Union law. The most significant EU act regulating conflict of laws for international copyright contracts is the Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (“Rome I”).
Conflict of laws – the nuts and bolts
When dealing with conflict of laws, we must take into account several important rules.
Firstly, provisions that handles conflict of laws are used to indicate a country, which law applies to a given case. To put it other way, they do not resolve the situation, but establish which law will be adequate to resolve this situation. For instance, Polish conflict of laws acts show you the law applicable to copyright contract issues, but do not tell you how to interpret this contract nor if it has invalid provisions or is invalid at all. The answer to these questions should be sought in the applicable law, that is Polish or foreign law indicated by the Polish conflict of laws acts.
Secondly, if the law determines that provisions of, for instance, Poland should govern a contract it does not mean that a dispute over this contract will be resolved by Polish courts and according to Polish procedure. These two issues are determined separately.
The situation can be complicated even more. Even though a contract is governed by a given country’s law, other matters important to the case can be governed by a different law. For instance, under Polish jurisdiction the applicable law for copyright transfers will be found in the Rome I regulation. Which law is applicable to determine if the transferred copyright already exists will be, however, determined by the other act – Private international law.
Finally, even if you have found the applicable law, there may be some situation when this law will not be taken into account (fully or partially). The most typical example of that is the “public policy rule”. It means that you cannot apply a foreign law if it is contrary to the fundamental rules of public policy (moral, social and legal order) of a country. In Polish law situation like that may happen in contract on waiving moral rights. Such contracts are allowed in common law countries (like the US or UK). Polish legal system clearly states that moral rights cannot be transferred nor waived and this rule results from author’s protection guaranteed by the Constitution. It may happen that even if the US law is applicable to a contract on waiving a moral rights, a Polish court will not apply it, basing on the public policy rule.
Types of copyright contracts – why it matters
One of the most important rules in contract law (regardless of a country) is freedom of contract. The consequence of this rule is that parties are (to certain extent) free to determine a contract’s terms and conditions and are not limited by certain types of contract – they may create tailor-made contracts that fit their specific needs.
This rule applies to copyright contracts as well. Apart from the most common types of contracts like copyright transfer or various licences, copyright may also be an object of, for instance, a pledge or lease. What is more, it can be a part of other agreement like a publishing contract, software development contract or contract on creating a specific work (a movie, advertisement, marketing campaign and so on).
Remembering this when making international contract is quite essential. The way how to choose the applicable jurisdiction may vary depending on a type of contract. It means that if you wish to make your contract governed by your country’s law and for some reason cannot include the choice of law clause, you can try to adjust your contract to the type which, basing on conflict of laws rules, will be resolved by the law of your country.