Právní nástupnictví v oblasti duševního vlastnictví a související kolizní otázky
Authors: Vlachová Zuzana 
Published: November 2022

The aim of the study is to analyse the institute of legal succession (both inter vivos and mortis causa) in the area of intellectual property law while paying attention especially to issues of contractual obligations and inheritance. In connection with that, the book focuses on questions arising in the field of private international law, particularly in the applicable law area. Thus, the book also sets out how to proceed and what to consider in cases with a cross-border element arising in this area. Firstly, the book focuses on legal succession in intellectual property law from the perspective of substantive law. It defines the specifics at the substantive law level, which are caused by the nature of both the protected intangible assets as such (their ubiquitous, non-rivalrous nature or their independence from the tangible carrier), and the specifics of intellectual property rights (for example the territorial limitation of the rights). The book identifies important aspects that cause or in-fluence these specifics. In case of intellectual property rights, the registration principle as well as limitations of transferability, of duration of rights, or limitation of the initial right holders is oftentimes present. For the private international law level, the importance of qualification (characterization) is emphasized, as it is a key methodological step for all phases of the assessment of relationships of legal succession with a cross-border element. For this study, the qualification is essential in connection with the determination of limitations between the application of the so called intellectual property statute and of other relevant statutes – that means mainly the obligation statute and the succession statute in the examined area. Questions related to intellectual property rights will typically arise in the context of the analysed area as preliminary questions. Particularly, the book analyses the applicable law rules contained in the Rome I Regulation and the Succession Regulation (as well as the overriding mandatory rules and the possibility of public order reservations). Considering issues of intellectual property rights as such, the conflict-of-laws rules for the examined area may be found only at the national law level. Czech law contains only one single applicable law rule for these issues – the lex loci protectionis connecting factor. Afterwards, it is determined which issues shall be generally included within the scope of the conflict-of-laws rule for intellectual property rights as such (the scope of the intellectual property statute) and thus which questions fall under the lex loci protectionis rule. It shall include questions of existence, content and duration of rights, or their erga omnes effects. It should also include the question of transferability of rights and the (initial) holder of the rights. However, there is no consensus in particular on the latter, where the question of the appropriateness of use of the lex loci protectionis rule is most often raised. Contractual obligations in the field of intellectual property law (in particular transfer or licence agreements) are subject to the conflict-of-laws rules of the Rome I Regulation. This Regulation, as well as the Succession Regulation, balances the requirement for legal certainty and predictability of applicable law solutions on the one hand and their flexibility on the other. Primarily, the Rome I Regulation provides for a lex electa rule (party autonomy); if there is no choice of law applica-ble, the alternative applicable law rules in the Rome I Regulation for individual cases will apply. As regards the limitations of application of the obligation statute, the specifics of intellectual property rights are particularly evident in individual employment contracts. Here arises the question whether the question of the initial rights holder shall fall under the scope of the obligation status or under the intellectual prop-erty statute in the case of employees’ creations. In addition, for exam-ple, next to the formal validity of the contract, assessed primarily by the lex causae (law applicable to the contractual relationship), the formal requirements for the transfer of rights or the limitations of their trans-ferability laid down by the lex loci protectionis always have to be con-sidered as well. Finally, the Succession Regulation lays down a conflict-of-laws rule for succession as a whole, whereby the concept of property within the meaning of the Regulation also includes intellectual property rights, which pass onto the heirs. In addition to the basic applicable law rule, the Succession Regulation also allows for a choice of law, albeit very limited compared to the Rome I Regulation. Although the scope of the Succession Regulation is broadly defined and interpreted, the transferability of intellectual property rights mortis causa, the duration of rights, or questions of their erga omnes effects have to be subsumed under the intellectual property statute. On the contrary, the questions of the transfer of property, including intellectual property rights, and the questions of the possible beneficiaries to whom they will pass, shall fall within the scope of the Succession Regulation.