Detailed Information on Publication Record
2024
Copyright Owners, National Treatment and Current Developments in Private International Law
HODERMARSKY, JanBasic information
Original name
Copyright Owners, National Treatment and Current Developments in Private International Law
Authors
HODERMARSKY, Jan (203 Czech Republic, guarantor, belonging to the institution)
Edition
Law. Journal of the Higher School of Economics, Moskva, Nacionalnyy issledovatelskiy universitet «Vysshaya shkola ekonomiki» 2024, 2072-8166
Other information
Language
English
Type of outcome
Článek v odborném periodiku
Field of Study
50501 Law
Country of publisher
Russian Federation
Confidentiality degree
není předmětem státního či obchodního tajemství
References:
Impact factor
Impact factor: 0.300 in 2022
Organization unit
Faculty of Law
UT WoS
001203865800009
Keywords in English
national treatment principle; copyright conflict-of-laws rules; initial ownership of copyright; lex originis; lex loci protectionis; initial copyright holder; territoriality principle; universality principle
Tags
Tags
International impact, Reviewed
Změněno: 11/11/2024 15:46, Mgr. Bc. Jan Hodermarsky
Abstract
V originále
The question of initial ownership is a preliminary question in all copyright claims. It is thus of fundamental importance for the success of any copyright claim. The confrontation of the principle of territoriality vis-à-vis the universality principle finds its reflection in the choice of a connecting factor for the question of initial ownership of copyright. Proponents of universality tend to apply the lex originis rule, which takes into consideration legal relations existent in the State of the origin of the work. On the other hand, there are proponents of the strict territoriality principle who apply lex loci protectionis conflict-of-laws rule to the whole copyright statute, including the ownership question, which leads to de facto violation of legitimate expectations of copyright holders. One of the often-mentioned arguments of lex loci protectionis proponents against the use of lex originis is that lex originis is not able to comply with the national treatment principle enshrined in most international copyright instruments. The purpose and aim of the article is to analyze whether the lex originis conflict-of-laws principle indeed contradicts the national treatment principle. For that purpose, the Russian judicial practice is analyzed, for Russia is one of few countries using the lex originis principle, which has also had an opportunity to develop an advanced judicial practice in this regard. Most EU countries prefer the lex loci protectionis connecting factor to determine the initial copyright owner, which, however, presents a substantial hindrance to the single market. In order to not touch the dogmatically settled lex loci protectionis principle and at the same time enable free movement of services within the single market, the EU has introduced a home country rule in its secondary law, which is a material copyright law derogation made in favor of the functioning of EU single market. Compliance of this phenomenon with the national treatment principle is also analyzed in this article. The author concludes that the conflict-of-laws principle lex originis, as well as the home country rule, are indeed incompatible with the national treatment principle. It is further concluded that it is through the lex originis principle that the essence of national treatment is realized. In order to interpret international copyright treaties secundum ratione legis, the question of copyright ownership should be explicitly excluded from the scope of national treatment, thus from the scope of lex loci protectionis.
Links
| MUNI/A/1471/2022, interní kód MU |
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