B.
Difficulties of application of the legislation related to the international
dimension of Internet
If the rules exist as regards intellectual property, it is
easy to contravene it, in particular because of the universalization of the
network and the coexistence of different legislations, more or less
protective.
1)
Conflicts of national laws as regards royalty
With regard to protected works, it is the author who decides
to authorize the provision of the public of his works. However, it should be
admitted that as soon as a work of author protected is digitized, and put in
circulation on Internet, the author loses any control on his diffusion.
Recently, the group of U2 rock'n'roll saw its last diffused pieces without it
having control of it.
The author could codify his work, to allow to identify his
origin, his place of first publication, to anticipate the possible uses of his
work on Internet in order to quantify the remuneration which would be due for
him. But how to precisely circumscribe the perimeter of exploitation of work on
Internet ? It is not a question of a simple act. How to observe the rules
of royalties whereas the offense takes place in a country which has a different
legislation ?
Indeed, the bulk-heading of the legislations reveals important
disparities. Certain States, in particular the Asian countries, are much more
laxists as regards continuations of the infringements. A requirement is thus
first of all to define the applicable law, that of the transmitting country or
that of the receiving country :
Within the framework of a contract, the applicable law is
that which the parts adopted, subject to the rules and International
Conventions.
As regards extracontractuelle civil liability, the
applicable law is that of the place where the detrimental fact occurred
(generating place of the damage or place where it occurred).
The applicable criminal law depends on the States. In
France, according to the Penal code, « the French criminal law is
applicable to the infringements made on the territory of the Republic. The
infringement famous is made on the territory of the Republic, since one of its
constitutive facts took place on this territory. ». However, the
identification and the incrimination of one prevented are made difficult
because of the use of techniques of anonymity. Moreover, the international
repressive mutual aid is limited by the rule of the double incrimination (which
exists in French right), which facilitates the continuation only for
infringements answering a penal qualification in the two States concerned.
Consequently, the existence of electronic paradises is not to neglect.
The repression of the frauds is all the more complicated to
implement which it is very difficult to locate a waiter which diffuses a work
without authorization. Everyone can diffuse at his place, with a computer
connected to Internet and then delocalize its waiter. Thus, when Pascal
Barbraud saw himself prohibiting the provision of the book of Doctor Gubler on
Internet, he threatened to put it on a waiter in Czech Republic.
A solution is to join together countries around a convention
in order to harmonize certain legal provisions. Thus a convention took place in
Geneva in December 1996, to wonder about a possible extension of the royalties
to the successive recopies of a work. The operators of network and Internet
sites wished that very given published first once on the Net becomes a public
data, taking into account the inevitable recopies due to the design features of
Internet. Contrary, the producers were in favor of an extension of the
reproduction right to the even transitory recopies and even in the absence of
transfer in the end-user.
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