Lex loci protectionis

The country of protection principle is a principle in private international law, which addresses issues of intellectual property, the law of the state is to be applied where protection is claimed. The right of protection country decides which (material) private law must apply to a situation involving foreign countries domestic authorities and courts.

The relevant for the determination of the applicable law protecting land policy is partly based on the idea that it is the responsibility of each country is primarily for the territory in terms of copyright relevant act protection is granted, to determine what the scope of this protection is to have there. The author is thus no uniform worldwide copyright to that governed by a single statute, but a bundle of national and content of different copyrights.

Protection principle of the country as a conflict rule

The protective principle of the country corresponds to the principle of territoriality, which is no positive law reference standard for himself, but at first only says that the scope of a national intellectual property law is limited to the corresponding territory. Thereafter, the copyright which is limited to the boundaries of the state. The territoriality principle urges the copyright holder to seek their rights in the legal system of each country's protection. Unlike the principle of territoriality is the content of the protection principle of the country not the substantive statement that rights act spatially limited, but the conflict of laws stating that intellectual property is assigned because of the peculiarity of their lack of fixed zipping localization of a legal system.

The existing international copyright treaties was because of the very different rules in the copyright section are not primarily the idea of creating a single copyright based, but the realization of the national treatment principle. Authors should for their works in the Contracting States have the same rights that are granted by the laws of the country their national authors.

Applicable Law

This principle is found in the Berne Convention, the TRIPS and also applies to the WIPO Copyright Treaty. From the national treatment principle contained approximately in the Berne Convention, the Paris Convention or the TRIPS widespread principle of territoriality and the collision principle of protection country principle derived.

Special importance is Article 5 of the Berne Convention. It reads:

" ( 1) The author enjoying the works for which they are protected by this Convention shall, in all countries of the Union other than the country of origin of the work, the rights granted by the relevant laws to national authors present or grant in the future, as well as in this agreement rights specially granted. ( 2) The enjoyment and the exercise of these rights are not tied to any formality; this enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work. As a result, set the level of protection as well as to the author to protect his rights are entitled to remedies exclusively under the legislation of the country where protection is claimed, to the extent this Agreement provides otherwise. "

The country of protection principle is Article 5, paragraph 2, sentence 2 basis of the Berne Convention. Claims of copyright infringement shall be determined by the law of the country, is looking for its territorial protection (so-called lex loci protectionis ). A copyright can therefore only be hurt in the State in which it was granted. In Austria, this also regulates the § 34Vorlage: § / Maintenance / RIS Search the Federal Act on Private International Law, in Switzerland, the section 110 of the Federal Act on Private International Law and in Germany for regulations of Internet law, the German Telemedia Act ( TMG). According to § 3 Paragraph 4 No. 6 TMG valid the country of origin principle in copyright does not apply otherwise.

The protective principle of the country is like the principle of territoriality recognized internationally. The protection of land policy is followed in Article 8 of the Rome II Regulation also entered into force on 11 January 2009 so-called EC Rome II Regulation. In particular, the International copyright but also the complete or partial replacement of territoriality by the universality principle and the protective principle of the country is represented by the country of origin principle in the literature.

The German Federal Court of Justice on 5 June 2003 precipitated a fundamental decision to protect principle. In his Hundertwasser decision, the Federal Court held that the plaintiffs enjoy as a citizen of a member state of the European Union for his works in Germany protection.

Protection principle and Internet

Difficult question remains under the applicable law in actions on the Internet, because the ubiquity of the Internet complicates the clear assignment of a territorial act of infringement to a particular territory protection. A distinction is made among other place indeed, offer state and call state.

A dissertation from 1999, comes with reference to Germany for the copyright to the result:

" Under German law is the Handlungsort making accessible in Germany when there is the server on which the work is offered permanently. Germany is also a country of protection, if the affected server is abroad, in Germany, however, a demand of supply is possible. "

According to the prevailing view, which also follows the case law of German and Austrian, but not enough to accept the violation of a domestic protection law, the mere accessibility of Internet Information domestically. The German Bundesgerichtshof with the trademark decision 'Hotel Maritim ' from the year 2005 mark infringements on an economically relevant domestic connecting from.

The protective principle of the country not only to the fact that a legally marketed abroad recording of a copyrighted work, for example in Germany may not be distributed, if not all the requirements therein are met. The principle also applies in reverse: If a building was photographed abroad, recording accordance with their legislation may not be sold, the marketing in Germany may nevertheless be permitted if the requirements of the Freedom of Panorama exist under German law. Shall not be published due to lack of freedom of panorama as shots of the night illuminated Eiffel Tower in France, it is irrelevant to the admissibility of the use of the photos in Germany.

The application of the protective principle of country prepares rights recyclers in the Internet sector, however, still major problems. Since the protective principle of the country, is also due, internationally widespread international treaties, would those authors of Internet content, the wish to avoid any violation of the law, their online presence according to the copyright laws of all the States shall, from which their offer is available - even if this is due to the number of national legislation is practically impossible to implement. Each of these states is, in any event potentially as a protective country in question, because if at all, as in Germany, a domestic connection is required, it is judged differently in different jurisdictions.