A Comparison of the ALI and CLIP Proposals
Chapter 10: Conclusions
The law applicable to copyright infringements is a complicated and problematic field of law. As was predicted, the lex loci protectionis rule and the territoriality principle are more problematic than normally expected. Although territoriality is universally recognised as an underlying principle of copyright, it has no explicit legal source, no clear concept or scope, and its strict application in copyright law cannot be justified in all cases. Also, its relation to the lex loci protectionis rule is not as tight as might be expected. Furthermore, lex loci protectionis, although known in most countries, has no clear international legal source and is not necessarily found in national statutes, nor even in all cases applied in practice. Its scope differs from country to country and its delimitation from the lex loci delicti (commissi) rule is not clear. In addition, the supplementary doctrines – emission, Bogsch, effect and root-copy – often play a decisive role in the choice of law procedure, although their legal nature is not sufficiently clear (substantive or applicable law) and their scope and application are not harmonised. The existing rules cause similar problems in different media, however, to a different extent. In traditional infringement cases lex loci protectionis becomes unreasonable for multi-state infringements, in particular, in prima facie (piracy) cases. In broadcasting infringement cases, the emission and Bogsch doctrines play a decisive role in the choice of law procedure. The emission theory, although generally welcomed at EU level, is barely possible at an international level, because of insufficient international harmonisation. Furthermore,...
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