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CLIP (a group of scholars in the fields of intellectual property and private international law) Comments on the European Commission's Proposal for a Regulation on the Law Applicable to Contractual Obligations ("Rome I") and the Legal Affairs' Draft Report. The Group recommends the following approach:
1- The European legislator should not introduce a rule on the law applicable to contracts relating to intellectual property rights in Art. 4 of the future Rome I-Regulation.
2- Should the European legislator prefer to insert such a rule in Art. 4, this rule should be drafted as a presumption and not as a fixed rule. Therefore, the future Art. 4 (1) (f) should rather be based on the European Parliament’s Rome I-Draft Report and not on the Commission’s Rome I-Proposal. The presumption should be refined in this case. Art. 4 (1) (f) should be drafted as follows:
“(f) a contract having as its main object the transfer or license of an intellectual or industrial property right shall be presumed to be most closely connected with the law of the country in which the person who transfers or licenses the rights has his habitual residence, unless the transferee or licensee has accepted a duty to exploit the rights.”
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CLIP Suggestions for amendment of the Brussels I regulation with respect to Exclusive jurisdiction and cross border intellectual property (patent) infringement.
“In consequence of ECJ judgments C-4/03 – GAT v. LuK and C-539/03 – Roche Nederland v. Primus, handed down on 13 July 2005, it appears no longer feasible for a national court to allow for consolidation of claims against a person infringing parallel intellectual property rights registered in different Member States, and/or to accept a joinder of claims against multiple defendants engaged in concerted actions. It is feared that this will entail considerable impediments for an efficient enforcement of intellectual property rights, in particular of patents.”
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S.J. van Gompel: Audiovisual Archives and the Inability to Clear Rights in Orphan Works, l, IRIS plus (Supplement to IRIS - Legal Observations of the European Audiovisual Observatory), 2007-4.
"Irrespective of whether a solution would be sought at the European or national level, it would in any event be desirable that a uniform approach be taken in the different European countries. If a solution were introduced at the national level, states would at least need to agree to mutually recognise the permitted use of orphan works under any legal mechanism established in another state. Such an agreement would attend to the licensing difficulties that may occur in case of a cross-border exploitation of orphan works. Hence, if the orphan works problem were to be dealt with at national level, this would require additional measures, or at least a coordinated approach, at European level. The orphan works issue can only be effectively addressed, if thisprecondition is fulfilled."
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