Copyright Owners, National Treatment and Current Developments in Private International Law

Result code in IS VaVaI

<a href="https://www.isvavai.cz/riv?ss=detail&h=RIV%2F00216224%3A14220%2F24%3A00135633" target="_blank" >RIV/00216224:14220/24:00135633 - isvavai.cz</a>

Result on the web

<a href="https://law-journal.hse.ru/article/view/19937/17441" target="_blank" >https://law-journal.hse.ru/article/view/19937/17441</a>

DOI - Digital Object Identifier

<a href="http://dx.doi.org/10.17323/2072-8166.2024.1.213.245" target="_blank" >10.17323/2072-8166.2024.1.213.245</a>

Result language

angličtina

Original language name

Copyright Owners, National Treatment and Current Developments in Private International Law

Original language description

The question of initial ownership is a preliminary question in all copyright claims. It is thus of fundamental importance for the success of any copyright claim. The confrontation of the principle of territoriality vis-à-vis the universality principle finds its reflection in the choice of a connecting factor for the question of initial ownership of copyright. Proponents of universality tend to apply the lex originis rule, which takes into consideration legal relations existent in the State of the origin of the work. On the other hand, there are proponents of the strict territoriality principle who apply lex loci protectionis conflict-of-laws rule to the whole copyright statute, including the ownership question, which leads to de facto violation of legitimate expectations of copyright holders. One of the often-mentioned arguments of lex loci protectionis proponents against the use of lex originis is that lex originis is not able to comply with the national treatment principle enshrined in most international copyright instruments. The purpose and aim of the article is to analyze whether the lex originis conflict-of-laws principle indeed contradicts the national treatment principle. For that purpose, the Russian judicial practice is analyzed, for Russia is one of few countries using the lex originis principle, which has also had an opportunity to develop an advanced judicial practice in this regard. Most EU countries prefer the lex loci protectionis connecting factor to determine the initial copyright owner, which, however, presents a substantial hindrance to the single market. In order to not touch the dogmatically settled lex loci protectionis principle and at the same time enable free movement of services within the single market, the EU has introduced a home country rule in its secondary law, which is a material copyright law derogation made in favor of the functioning of EU single market. Compliance of this phenomenon with the national treatment principle is also analyzed in this article. The author concludes that the conflict-of-laws principle lex originis, as well as the home country rule, are indeed incompatible with the national treatment principle. It is further concluded that it is through the lex originis principle that the essence of national treatment is realized. In order to interpret international copyright treaties secundum ratione legis, the question of copyright ownership should be explicitly excluded from the scope of national treatment, thus from the scope of lex loci protectionis.

Czech name

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Czech description

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Type

J_imp - Article in a specialist periodical, which is included in the Web of Science database

CEP classification

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OECD FORD branch

50501 - Law

Project

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Continuities

S - Specificky vyzkum na vysokych skolach

Publication year

2024

Confidentiality

S - Úplné a pravdivé údaje o projektu nepodléhají ochraně podle zvláštních právních předpisů

Name of the periodical

Law. Journal of the Higher School of Economics

ISSN

2072-8166

e-ISSN

2072-8166

Volume of the periodical

17

Issue of the periodical within the volume

1

Country of publishing house

RU - RUSSIAN FEDERATION

Number of pages

33

Pages from-to

213-245

UT code for WoS article

001203865800009

EID of the result in the Scopus database

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