Infringement of exclusive rights on the Internet: A comparative analysis of regulation on the applicable law

Abstract

The issues on applicable law in cases of infringement of the exclusive rights on the Internet are usually considered through the traditional approach, while the specifics of the Internet as a decentralized and cross-border network are not taken into account. This fact urges to critically rethink and update existing approaches on the applicable law. The subject of the study is the peculiarities of the law applicable to establishing the fact of infringement and the law applicable to the choice for remedies.The author analyzes acts of various levels (including the Berne Convention, legislation of the European Union, the Russian Federation, Switzerland, the People’s Republic of China, soft law initiatives) and concludes that soft law initiatives contain proposals for more detailed regulation, but due to their nature they are not binding on the law enforcer. It is necessary to define the conditions which the choice of the country for which a person claims protection should correspond to. Thus, the plaintiff should choose the country where the resulting harm for that person is more significant. What is also important is to provide the parties with the opportunity to choose applicable law for remedies after the dispute occurs that will increase legal certainty of legal relations.

Keywords

• jurisdiction
• applicable law
• infringement
• exclusive rights
• internet