Private international law issues of moral rights

Torremans, Paul

Abstract

In this chapter I will look at moral rights from a private international law perspective. Rather than look at the scope and exact content of moral rights I will look at issues of jurisdiction and choice of law. It is important to note that from a private international law perspective one needs to determine first of all the court that will have jurisdiction or, if a case is brought before a court, the court will have to check whether it has indeed jurisdiction to hear the case. That will also happen in a case that involves moral rights. Once the court has established its jurisdiction to hear the case involving moral rights it will then, under its own rules of private international law, determine the law applicable to the moral rights issue before it. The chapter will therefore look at jurisdiction in a first stage, before moving on to choice of law. The analysis will be conducted from a European Union perspective, but it is fair to say that most private international law systems around the world adopt a very similar approach. In the jurisdiction area that can be explained by the use of the same basic rules that are firmly based on fundamental principles of justice, whilst in the choice of law area there is the harmonizing influence of Article 5 of the Berne Convention and its principle of national treatment. In terms of jurisdiction there is, of course, a debate whether the traditional tort approach and its focus on factual elements is more suitable or the centre of main interest approach that focuses on the person of the author. The latter sounds attractive in a moral rights setting. In terms of choice of law moral rights are arguably just another aspect of the right as such.

Citation

Torremans, P. (2023). Private international law issues of moral rights. In Y. Gendreau (Ed.), Research handbook on Intellectual Property and Moral Rights (355-368). Cheltenham: Edward Elgar Publishing. https://doi.org/10.4337/9781789904871.00031

• Online Publication Date: Oct 1, 2023
• Publication Date: Sep 12, 2023
• Deposit Date: Oct 18, 2023
• Publisher: Edward Elgar Publishing
• Pages: 355-368
• Series Title: Research Handbooks in Intellectual Property series
• Book Title: Research handbook on Intellectual Property and Moral Rights
• Chapter Number: 20
• ISBN: 9781789904864
• DOI: https://doi.org/10.4337/9781789904871.00031
• Keywords: Private international law; Jurisdiction; Country; Case
• Public URL: https://nottingham-repository.worktribe.com/output/26222923
• Publisher URL: https://www.elgaronline.com/edcollchap/book/9781789904871/book-part-9781789904871-31.xml