Chapter 6: Conflicts of laws and choice of law
One of the most fundamental issues concerning international protection is to determine which national law applies to which acts regarding the protected work or object of related rights. The basic main rule in this respect is the principle of territoriality: that is, the law of a country applies in the national territory and only there. This rule is also expressed in Article 5(2) of the Berne Convention where the second sentence states that 'the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed'. By virtue of the incorporation by reference in Article 9(1) of the TRIPS Agreement, Article 1(4) of the WCT and Article 1 of the ACTA Agreement, this also applies to the protection of copyright in literary and artistic works under those instruments. The wording of Article 5(2), however, raises a basic question: exactly which law is it aiming at? The provision gives only limited guidance as to the exact country to which reference is made in the more complex situations.
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