A Handbook of Contemporary Research
Research Handbooks in Intellectual Property series
Edited by Paul Torremans
Chapter 19: Questioning the principles of territoriality: the determination of territorial mechanisms of commercialisation
Paul Torremans1 Introduction Under the broad heading of ‘Questioning the principles of territoriality’ this chapter looks at the determination of territorial mechanisms of commercialisation. Territoriality is a concept that is often misunderstood, but that is often used to explain somewhat odd aspects and implications of copyright. These implications are then seen as inevitable, because of the omnipresence in copyright of that concept of territoriality. One of my favourite examples is the idea that the court of the domicile of the defendant cannot deal with a claim concerning the infringement of a foreign copyright. This is based on a fundamental misunderstanding of the concept of territoriality and the negative consequences of the idea, i.e. that multiple cases need to be brought in multiple jurisdictions, are seen as inevitable because of the presence in copyright law of this concept of territoriality. A definition of territoriality There is therefore a need to set the scene by defining the concept of territoriality. The international legal framework does not use the concept and does not offer a definition. The Berne Convention, the TRIPs Agreement and the WIPO Treaties, to name just three, are based on the concept or their implementation inevitably leads to it, depending on the view one takes, but they do not contain the term nor do they offer a definition of the concept. Let me therefore refer to one of the leading texts on copyright, at least as far as the UK is concerned. The editors of Copinger and Skone James on...
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