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TRANSACTIONS CONCERNING THE COPYRIGHT IN COMPUTER PROGRAMS: SUBSTANTIVE AND CONFLICT OF LAWS ASPECTS
Ivana Kunda
; Pravni fakultet Sveučilišta u Rijeci
Romana Matanovac Vučković
; Pravni fakultet Sveučilišta u Zagrebu
Sažetak
Computer program is a sort of copyrighted works which brought certain specific features in conceptualising the level of originality needed for meriting copyright protection. Based on the harmonisation of copyright laws in the EU Member States, the concept of originality in civil law has significantly approached to the concept of originality in common law which does not require creativity in creating intellectual product. EU law instruments and Croatian laws harmonised with it, contain only some rules on transactions concerning the computer programs, whereas the general obligation laws are pertinent in the remaining part, distinguishing between rules on civil, commercial and consumer contracts. Conglomerate of different rules regulating transactions involving copyrighted computer programs are not separated without difficulty, but such separation is of crucial importance for correct application of substantive laws as well as conflict rules in case of cross-border contracts.
Conflict of laws approach to the issue of copyright transactions has undergone transformations in the past, while today the primary connection is made by the parties’ choice of applicable law, both in Croatian private international law, and in comparative law including the EU law. In the absence of the parties’ choice, the connecting factor is, as is the case with contracts in general, inspired by the doctrine of the characteristic performance, where the question as to the which performance is characteristic remains highly debated. In determining the applicable law, one has to be mindful of the delineation between two sorts of issues related to a copyright contract: purely contractual issues and those which concern the right as such, the latter being excluded from the application of the lex contractus due to territoriality principle. Likewise, special attention has to be paid to the consumer-protective rules in determining the applicable law for consumer copyright contracts.
Ključne riječi
copyright (author’s right); computer program; contract; private international law (conflict of laws)
Hrčak ID:
53524
URI
Datum izdavanja:
8.4.2010.
Posjeta: 7.895 *