Chapter 2: THE PRINCIPLE OF NON-DISCRIMINATION
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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