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

Kód výsledku v 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>

Výsledek na webu

<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>

Jazyk výsledku

angličtina

Název v původním jazyce

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

Popis výsledku v původním jazyce

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.

Název v anglickém jazyce

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

Popis výsledku anglicky

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.

Druh

J_imp - Článek v periodiku v databázi Web of Science

CEP obor

—

OECD FORD obor

50501 - Law

Projekt

—

Návaznosti

S - Specificky vyzkum na vysokych skolach

Rok uplatnění

2024

Kód důvěrnosti údajů

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

Název periodika

Law. Journal of the Higher School of Economics

ISSN

2072-8166

e-ISSN

2072-8166

Svazek periodika

17

Číslo periodika v rámci svazku

1

Stát vydavatele periodika

RU - Ruská federace

Počet stran výsledku

33

Strana od-do

213-245

Kód UT WoS článku

001203865800009

EID výsledku v databázi Scopus

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