The Territoriality Principle and the Lex Loci Protectionis Principle

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Each country has the sovereign power to enact legislation, that is, to set law. This means that the law is territorial, so it applies within a country or more restricted geographical zones (“Territoriality Principle”).

In the absence of any actual international law, we are dealing in the domain of copyright with a whole range of parallel existent national laws.

While countries are at liberty to make their own laws, they can also sign international treaties between themselves. These can be seen as “laws” applying to a number of countries and having different objectives. One objective is the harmonisation of the legislation of the countries which have signed the treaty by adopting common guidelines. This is called “public international law”. The other objective is to adopt common regulations for determining competent courts, resolving conflicts of laws and dealing with the situation involving the status of foreigners. This is called “private international law”. There are many treaties which cover copyright law but their scope varies. One important treaty is the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention).

However, there are not always treaties in place to settle conflicts of laws. On the one hand each country could therefore adopt a regulation regarding private international law on a national level which would serve to resolve cross-border situations. On the other hand, a treaty may exist but might be subject to interpretation, meaning that each country could apply it differently within its territory. That is the case in the example from Article 5 of the Berne Convention.

Conflicts of law that arise in the domain of copyright will be solved with the help of the lex loci protectionis principle, that most countries have adopted. According to that principle the situation will be examined from the point of view of the law of the place where protection is requested (normally the law of that country, in which the protected work is used). This lex loci protectionis principle is actually a specification of the Territoriality Principle.

A similar provision can be found in Article 5.2 of the Berne Convention. Hence according to a part of legal doctrine the lex loci protectionis principle is embedded in Art. 5.2 Berne Convention. But there are different opinions of the doctrines. Other countries do not apply the lex loci protectionis principle but provide their own regulations to solve conflicts of law such as a regulation that requires the application of the law of the country where the work originated, in particular in order to determine if the conditions of protection were applicable at the time the work was created.

It is therefore necessary to verify if the countries involved in a cross-border situation use the lex loci protectionis principle.