A Comparison of the ALI and CLIP Proposals
Chapter 3: Evaluation and Alternatives
3. Evaluation and alternatives The task of this part is to briefly review the main arguments in favour of and against the rules discussed in earlier chapters – the territoriality principle, lex loci protectionis and the relevant substantive law doctrines – in the context of different types of infringements. This will serve as a basis for a later thorough analysis of similar rules provided in the ALI and CLIP Proposals. Here, three main types of infringements are distinguished: infringements in so called ‘traditional’,1 broadcasting and Internet media. This distinction is based on the assumption that with the gradual development of the technology, slightly different problems emerged and specific solutions to them have been developed (e.g. the Bogsch theory was developed for broadcasting infringements, effect theory – for Internet infringements). However, as will be seen later, the problems are rather similar as well as there being important horizontal problems (e.g. initial ownership) although the extent of them may differ significantly. The evaluation is based on the interests analysis method which seeks to identify which parties’ and states’ interests are favoured and how they are balanced by each particular rule.2 This part analyses the rules and main selected alternatives in respect of each type of infringement – those occurring through traditional (A), broadcasting (B) and Internet (C) media. A. TRADITIONAL INFRINGEMENTS In this chapter, the advantages and disadvantages of three known rules in respect of infringement in traditional media will be analysed – lex loci protectionis (I), lex originis (II) and the root-copy approach (III). When...
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