Copyright protection on the territory of Russia in the Russian court
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Today, in the conditions of an expanding cross-border trafficking of intellectual property rights sharper sound issues of determining the law applicable to the relevant relationship.
It should be borne in mind that, in spite of the developed normative regulation of intellectual property relations, it "does not allow to move freely enough intellectual property rights." In other words, today is an issue about the standards on which the domestic courts must be guided in solving cross-border disputes over intellectual property rights. The possibility of application to the relations in the sphere of intellectual property rights lex mercatoria remains open. Interestingly, a number of authors, exploring the historical aspect of intellectual property rights, it is believed that the first provisions on the protection of intellectual property rights have appeared within the lex mercatoria. So, GJ Berman points to the existence of patents and trademarks under the lex mercatoria in the XI-XIII centuries. Talking about the application of the lex mercatoria to intellectual disputes, it is necessary to dwell on the definition of «lex mercatoria» the concept itself.
By the way, about the content of this category over a sufficiently long period of time there have been discussions in the literature. Without going into their essence in the present study, we consider it possible to agree with VN Lipovtsevym, determined the lex mercatoria as "... a set of norms and rules of origin of the non-governmental, private law governing international relations in the commercial turnover." Equally successful is possible to recognize the definition of lex mercatoria as a "legal system, based not only on the institutions and the local customs of a particular country, and consists of certain principles of equity and trade practices established for total convenience and due to the concept of justice for the regulation of international commercial activities." Many researchers (both Russian and foreign) noted the complexity, diversity and uncertainty «lex mercatoria» legal category. Most modern concept of lex mercatoria is considered as an analogue, revival of the corresponding concepts existed in the times of medieval law.
It is known that the concept of «lex mercatoria» itself appeared in the XI-XII centuries. in Europe in the framework of the so-called "merchant's right." The basis of this system were trading practices which have developed in the business community trading in Europe, guided by the principle of contractual freedom and justice. The need for standards lex mercatoria within the medieval law is obvious and justified: the state of the time does not aim to regulate private law relationships, respectively, owners were forced to regulate the relationship to create a set of rules of their rights, even though the period is very active use of "merchant law" it was not universal legal control. Thus, it is possible to say that today the doctrine there is no single approach to this phenomenon. But if we try to summarize the various points of view, in the most general terms lex mercatoria can be defined as the right perpetrated by the parties to the agreement, in other words, actually lex mercatoria - This is a normal system operating for a long period of time, ie, the so-called ".. routine. " Thus, lex mercatoria norms are not legal and can not be the source of legal regulation. Another GF Shershenevich noted that "... routine in commercial matters is not legally necessary, and in fact has no legal", and denied him in the universal nature of acquisition opportunities.
In the field of study has a number of interrelated problems:
Firstly, the possibility of applying to the relationship of IP rules of private international law (especially in a situation of deliberate isolation by the legislator standards of IP rights)
Secondly, the validity of the spread of the relations on the objects of intellectual property rights treaty regulating means (autonomy of will).
Accessories for SPE conflicts that arise when confronted several legal systems, causing the need to find a life of conflict and substantive rules, aiming to choose the applicable law to the dispute in the area of IP. Of course, to help the domestic law-coming Russian conflict rules devoted to certain aspects of intellectual property rights, which (unlike the other legal orders) are included in the content of the article 1211 of the Civil Code.
This approach appears to be evidence of the desire of the legislator to include cross-border trafficking of intellectual property rights in the standard framework of the contractual relationship and, therefore, apply to contracts in respect of IP (and disputes arising from such agreements) of the Rules