Elgar Commentaries series
Edited by Irini A. Stamatoudi and Paul Torremans
Chapter 2: THE PRINCIPLE OF NON-DISCRIMINATION
The principle of non-discrimination enables authors or artists to start a procedure when they are directly or indirectly treated in a less favourable way than some other creators or performers. This principle as applied to copyright and related rights protection can be analysed under several perspectives. For instance, as to subject matter one could ask why recipes (or fragrances) generally receive no protection, while photography or software do. As to the creators and right holders, one could ask how to justify different rules for private subjects and public bodies. Traditionally the non-discrimination principle is studied in a private international law perspective and the main question afforded by judges and commentators is whether a different treatment based on the nationality of authors and artists can be justified by objective reasons. This work studies only the principle of non-discrimination based on nationality of creators and performers, while the impact of such a principle on different genres of works of art, or on public and private creations will not be analysed. The principle of non-discrimination is rooted in the natural law philosophy. First recognised in the Bill of Rights of the Northern American colonial states and in the French Declarations of Human Rights and Civil Rights of 1789 and1793, it has since been incorporated in nearly all international treaties and conventions on human rights, such as the Universal Declaration of Human Rights (UDHR) and the International Covenants of 1966.
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