The Territoriality Principle and the Lex Loci Protectionis Principle
Each country has the sovereign power to enact legislation, that is, to set law. This means that the law is territorial, so it applies within a country or more restricted geographical zones (“Territoriality Principle”).
In the absence of any actual international law, we are dealing in the domain of copyright with a whole range of parallel existent national laws.
While countries are at liberty to make their own laws, they can also sign international treaties between themselves. These can be seen as "laws" applying to a number of countries and having different objectives. One objective is the harmonisation of the legislation of the countries which have signed the treaty by adopting common guidelines. This is called "public international law". The other objective is to adopt common regulations for determining competent courts, resolving conflicts of laws and dealing with the situation involving the status of foreigners. This is called "private international law". There are many treaties which cover copyright law but their scope varies. One important treaty is the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention).
However, there are not always treaties in place to settle conflicts of laws. On the one hand each country could therefore adopt a regulation regarding private international law on a national level which would serve to resolve cross-border situations. On the other hand, a treaty may exist but might be subject to interpretation, meaning that each country could apply it differently within its territory. That is the case in the example from Article 5 of the Berne Convention.
Conflicts of law that arise in the domain of copyright will be solved with the help of the lex loci protectionis principle, that most countries have adopted. According to that principle the situation will be examined from the point of view of the law of the place where protection is requested (normally the law of that country, in which the protected work is used). This lex loci protectionis principle is actually a specification of the Territoriality Principle.
A similar provision can be found in Article 5.2 of the Berne Convention. Hence according to a part of legal doctrine the lex loci protectionis principle is embedded in Art. 5.2 Berne Convention. But there are different opinions of the doctrines. Other countries do not apply the lex loci protectionis principle but provide their own regulations to solve conflicts of law such as a regulation that requires the application of the law of the country where the work originated, in particular in order to determine if the conditions of protection were applicable at the time the work was created.
It is therefore necessary to verify if the countries involved in a cross-border situation use the lex loci protectionis principle.
Different interpretations of the Berne Convention
Article 5 of the Berne Convention stipulates that each signatory state must grant the nationals of other member states the same rights within its territory as its own nationals (Article 5.1) and that this protection is governed exclusively by the law of the country for which the protection is being claimed regardless of any existing protection in the country of origin of the work (Article 5.2). This clause has caused some disagreement within the legal doctrine.
- Some consider that it reinforces the lex loci protectionis principle for copyrights and leads to the application of the copyright law of the country where the work is being used (and for which the protection is being claimed).
- Whereas for others within the doctrine, it constitutes a clause containing conditions for foreigners and should lead to the following, in particular:
- The application of the principle of reciprocity, whereby works created in country A by someone of nationality B will be protected by copyright if country B protects the works of nationals from country A within its own territory.
- The application of national private international law: in the case of a conflict of law in territory A, A will apply its own private international law, which will lead to the application of the law of the country of origin of the work or of that of country A.
The legislator and the judge of each country are able to decide in favour of one position or the other.
One example of the influence of international treaties on the question of applicable law is shown in the two judgements made on 10 April 2013 (appeal no. 11-12.508 and 11-12.509) by the French Court of Cassation: A reporter/cameraman was employed by an American (US) company in 1978 and then given a role in its French subsidiary in 1993. Following his dismissal in 2004, he filed a claim against his employer citing an infringement of his copyrights. The lower courts’ interpretation of international private law was that it leads to the application of the law of the country of origin of the work, i.e. the US. According to US law, the copyrights of a work created by an employee belong to the employer, which meant that the cameraman was not able to file a claim. The Court of Cassation, however, judged that Article 5.2 of the Berne Convention also has some bearing on the creation of the work, so national law (i.e. French law) had to apply in this dispute. Since French copyright law does not stipulate that the rights automatically go to the employer for a work created by an employee as part of their paid duties, the Court of Cassation eventually ruled in favour of the cameraman.