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EU COPYRIGHT LAW

A Commentary

IRINI STAMATOUDI, PAUL TORREMANS

This significantly revised and updated second edition addresses the rapid development of EU copyright law in relation to the advancement of new technologies, the need for a borderless digital market and the considerable number of EU legal instruments enacted as a result. Taking a comparative approach, the Commentary provides comprehensive coverage and in-depth commentary on each of the EU legal instruments and policies, both from an EU and an international perspective. Alongside full legislative analysis and article-by-article commentary, the Commentary illustrates the underlying basic principles of free movement and non-discrimination and provides insights into the influence of copyright on other areas of EU policy, including telecoms and bilateral trade agreements.
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Chapter 2: THE PRINCIPLE OF NON-DISCRIMINATION

Christiana Sappa

Extract

Intellectual Property Rights (IPRs) are recognized and enforceable within the limits of the State that granted them. The principle of territoriality governing all IPRs, including copyright, is embedded in all national legal systems in compliance with the TRIPs Agreement, and therefore in the EU legal system, too. The main implication of the territoriality principle is that the law applying to any IPR exploitation or infringement is the law of the country where such an exploitation or infringement occurs. Thus, a rule regarding choice of law is needed in order to avoid - or at least limit - the discriminatory treatment deriving from such a territoriality paradigm. As applied to copyright and related rights protection, non-discrimination enables authors or artists to start a legal action when they are directly or indirectly treated in a less favourable way than some other creators or performers. This principle can be analysed in several perspectives. First, non-discrimination could concern the protectable subject matter: one could ask why flavours or fragrances generally receive no protection, while photography or software do. Second, one could ask how to justify different rules for private subjects and public bodies. Both these perspectives can be analysed and solved under the constitutional law angle. Traditionally, however, the nondiscrimination principle in copyright is studied in a geographical perspective governed by private international law. The main question afforded by judges and commentators is whether and how a different treatment based on the nationality of authors and artists can be justified by objective reasons.

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