A Comparison of the ALI and CLIP Proposals
Chapter 2: Main Rules
2. Main rules The goal of this part is to analyse the main rules – territoriality principle (A), lex loci protectionis (B) and relevant substantive law doctrines (C) – as applied in the selected jurisdictions (Germany, Austria, UK, France and the USA). Although most of them are broadly accepted in practice, it will be demonstrated that they cause more problems than expected. A. TERRITORIALITY PRINCIPLE The principle of territoriality plays an essential role in the discussions on law applicable to copyright cases. However, the concept, scope and justification of it are more complicated than might be expected. Many commentators describe it as an extremely vague concept.1 It is not the purpose of this study to provide a thorough analysis of the territoriality principle.2 Rather, its concept (I), legal source (II), justification (III), scope (IV) and relation to lex loci protectionis (V) will be briefly analysed as far as it is necessary for further discussion on the law applicable to copyright infringements. I. Concept Generally, the territoriality principle means that the copyright law of the country applies only inside that country.3 However, this general concept leaves numerous questions open. For instance, aren’t all laws binding only in the territory of a respective country which issued the law?4 If so, why is copyright said to be territorial whereas other fields of private law, e.g. contract law, are universal? Why are copyright infringements subject to 1 See, e.g., Wadlow, 1998, paras 1–22; Kegel/Seidl, 1978, p. 234; Weigel, 1973, pp. 77–8; Bollacher, 2005,...
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