YEARBOOK 2009 / I - AIPPI

This point was left for further study by the paragraph 9 of the resolution adopted in
Singapore.
And more specifically the Groups are requested to indicate if their national laws accept
that the co-ownership of an IP Right, even if there is no contractual agreement between
the co-owners, may be ruled by the national law of the country which presents the closest
connections with the IP Right.
If this is the case, what in the opinion of the Groups would then be the elements to take into
the consideration to assess this connection?
The Groups of the EU Countries are in this context asked to indicate if they consider that
Council Regulation of June 17, 2008 (No 593/2008), so called “Rome I” may be applicable
to the Co-Ownership agreements.
Indeed the national law of the country which presents the closest connections with the IP right
governs the co–ownership.
Obviously, in cases where the co–ownership is limited to an IP–right that extends only to one
country the laws of this country should apply. Otherwise the country which presents the closest
connection must be defined by using the criteria also applicable for this test, such as residence,
citizenship, currency, place of entering into the agreement etc. Rome I may apply.
But once the co–ownership is condensed to an association (namely a civil law association)
the law of the country where there is the seat of the association will apply (it has to be noted
though that the doctrine is split on this issue).
7) Finally, the groups are also invited to present all other issues which appear to be relevant to
the question and which were not discussed neither in these working guidelines, nor in the
previous ones for the 2007 ExCo in Singapore.
Harmonisation of national laws would be useful in general.
Distinctions between various IP–rights need to be drawn very carefully but it seems inevitable
that by nature of the various IP–rights it is impossible that among them they are treated
equally.
One additional aspect may be worthwhile to be looked at, i.e. the line between a co–
ownership and an association. If this line is drawn differently in different countries it is possible
that even on the basis of harmonised rules on the conflict of laws it makes a big difference to
which country a case is directed by such rules as in one case the people who have rights to
an IP–right may find themselves as “simple” co–owners or as shareholders/partners.
II)
Proposal for the future harmonisation
The groups are invited to present any recommendation that can be followed in the view of
the further harmonisation of national laws in the context of co-ownership, specifically on the
points raised by the working guidelines above in relation to the current state of their national
laws.
Harmonisation should advance since cases where co–owners are coming from various
jurisdictions will increase in numbers. Therefore in a first step harmonisation is important as
regards the rules of international private law defining the law which governs such multinational
co–ownerships.
There should be looked at to which extent the various IP–rights require different treatment.
Copyright may be different from other IP–rights.
Particular attention is required as regards the relation between IP–rights and Competition
Law. The latter must not prevail to the extent unduly hollowing IP–rights.
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