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Applicable law, conflicts of law

There are some important differences between national laws in Europe – which law should be followed?

There are no clear rules governing conflicts of copyright laws. The Berne Convention (art. 5 (2) in fine) says only that "the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed". Traditionally it is understood that according to this text, the law of the country where the (infringing) activity takes place should apply; for example, if we are conducting our research in the US, we can apply only the US law with all the benefits of fair use and implied license, even while working on German works.

However, the situation becomes much more complex when someone wants to publish his data online, so that they can be consulted from every place on Earth. For example, French books scanned and digitized by Google (in the US) and published online (from a server in California) on a website with an .fr extension were found by a French court to infringe French law (even though, traditionally, only US law should apply, as the server was located in California).

This creates very difficult situations, where in practice one has to take into account all possibly applicable legal systems, but for now there is no general solution to this problem. Nevertheless, while on the German territory, one can never ignore German copyright law.

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