Protected land principle

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The country of protection principle is a principle in private international law , according to which the law of the state for whose territory protection is claimed applies to questions of intellectual property . The law of the protected country decides which (substantive) private law domestic authorities and courts have to apply to a situation with international relevance.

The principle of protection of land, which is decisive for the determination of the applicable law, is based, among other things, on the idea that it is primarily a matter for the respective country, for whose territory protection is granted with regard to an act relevant to copyright, to determine the extent of this protection there. The author is therefore not entitled to a uniform copyright worldwide that is subject to a single statute, but rather a bundle of national and content-related copyrights.

Protected land principle as a collision rule

The protected land principle corresponds to the territoriality principle , which in itself does not represent a positive legal reference norm, but initially only states that the scope of a national intellectual property is limited to the corresponding national territory . According to this, copyright is spatially limited to the borders of the state. The principle of territoriality urges the copyright holder to seek his rights in the legal system of the respective protected country. In contrast to the principle of territoriality, the content of the principle of protected land is not the substantive statement that rights have a spatially limited effect, but the conflict of laws statement that intellectual property rights are assigned a legal system due to the peculiarity of their missing location.

Because of the very different regulations in the area of ​​copyright, the internationally existing copyright agreements were not primarily based on the idea of ​​creating a uniform copyright law, but on the implementation of the principle of national treatment . Authors should have the same rights for their works in the contracting states that the laws of the country grant their domestic authors.

Applicable Law

This principle can be found in the Berne Convention , the TRIPS and also applies to the WIPO Copyright Treaty . The principle of territoriality and the principle of collision of the protected land principle are widely derived from the principle of national treatment contained in the Berne Convention, the Paris Convention or the TRIPS.

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

"(1) For the works for which they are protected by this agreement, the authors enjoy the rights in all member countries with the exception of the country of origin of the work that the relevant laws currently grant to domestic authors or will grant in the future, as well as those in rights specially granted to this agreement.

(2) The enjoyment and exercise of these rights are not tied to the completion of any formalities; this enjoyment and this exercise are independent of the existence of protection in the country of origin of the work. As a result, the scope of protection and the legal remedies to which the author is entitled to safeguard his rights are based exclusively on the legal provisions of the country in which the protection is claimed, unless this agreement provides otherwise. "

The protected land principle is based on Article 5, Paragraph 2, Clause 2 of the Berne Convention. Claims arising from copyright infringements are based on the law of the country for whose territory protection is sought (so-called lex loci protectionis). A copyright can therefore only be infringed in the state in which it was granted. In Austria, this is regulated by Section 34 of the Federal Act on Private International Law, in Switzerland by Article 110 of the Federal Act on Private International Law and in Germany for provisions of Internet law by the Telemedia Act (TMG). According to § 3 Para. 4 No. 6 TMG, the otherwise valid country of origin principle does not apply to copyrights.

Like the principle of territoriality, the protected land principle is internationally recognized. The so-called EC Rome II Regulation, which came into force on January 11, 2009 , follows the principle of protection of land in Art. 8 Rome II Regulation . In international copyright law in particular, however, the complete or partial replacement of the territoriality principle with the universality principle and the protection country principle with the country of origin principle is also represented in the literature.

On June 5, 2003, the German Federal Court of Justice passed a landmark ruling on the land protection principle. In its Hundertwasser decision, the Federal Court of Justice stated that the plaintiff, as a member of a member state of the European Union, enjoyed protection for his works in Germany.

Protected land principle and the Internet

The question of the applicable law for acts on the Internet remains difficult , because the worldwide accessibility of the Internet makes it difficult to clearly assign an infringing act to a certain protected territory. A distinction is made among other things: place of the act, offer state and retrieval state.

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

“According to German law, the place of action for making available is in Germany if the server on which the work is permanently offered is located there. Germany is also a protected country if the server concerned is located abroad, but the offer can be accessed in Germany. "

According to the prevailing opinion, which is also followed by German and Austrian jurisprudence, the mere accessibility of internet information in Germany is not sufficient to assume a violation of a domestic property right. With the trademark decision 'Hotel Maritim ' from 2005, the German Federal Court of Justice focuses on an economically relevant domestic reference in the event of trademark infringements .

The protection country principle means that the inclusion of a copyrighted work that may be legally marketed in the country of origin, e.g. B. may not be sold in Germany if not all of the requirements for this in Germany are met. But the principle also applies in reverse: if a building was photographed abroad and the picture is not allowed to be marketed under local law, marketing in Germany may nonetheless be permitted if the requirements for freedom of panorama are met under German law. If, for example, photos of the Eiffel Tower, which is illuminated at night, are not allowed to be published in France due to the lack of freedom of panorama , this does not affect the permissibility of the photo's use in Germany.

However, the validity of the protected land principle still creates major problems for users of rights in the Internet sector. Since the protection country principle, also due to international treaties, is widespread internationally, those authors of Internet content who want to exclude any legal infringement would have to align their online presence with the copyright laws of all countries from which their offer is accessible - even if this is due to the multitude of national laws will not be practicable. In any case, each of these states can potentially be considered as a protected country, because whether a domestic connection is required at all, as in Germany, is assessed differently in different jurisdictions. According to a more recent opinion, a link to the law of the nationality of the right holder is necessary, because here the closest connection between the work and the creator is given. The implementation of the universal link to the law of the nationality of the author ( lex patriae auctoris ) could for example be carried out by revising the Berne Convention . Which in turn would have extraordinary consequences for stateless persons.

literature

Web links

Individual evidence

  1. ↑ BGH, judgment of November 7, 2002 , Az. I ZR 175/00, full text; Protected land principle - "Sender Felsberg".
  2. ↑ BGH, judgment of October 2, 1997 , Az. I ZR 88/95, full text = MMR 1998, 35 - Spielbankaffaire
  3. ↑ Thomas Pattloch: The IPR of intellectual property in the PR China . Mohr Siebeck, 2003, ISBN 3-16-148053-8 , p. 58 ff.
  4. ↑ Schutzlandprinzip and Internet , Linksandlaw.de
  5. ↑ Bern Convention for the Protection of Works of Literature and Art . University of Münster.
  6. ↑ International copyright (PDF) p. 3, University of Leipzig
  7. ↑ Austrian Federal Law on International Private Law, Section 34 IRPG (PDF; 63 kB)
  8. ↑ Swiss Federal Law on International Private Law, Art. 110 IRPG
  9. ↑ Regulation (EC) No. 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations ("Rome II")
  10. ^ A b BGH, judgment June 5, 2003 , Az. I ZR 192/00, full text.
  11. ↑ Susanne Muth: The determination of the applicable law in the event of copyright infringement on the Internet. Frankfurt am Main: Peter Lang, 2000. Also Düsseldorf: University of Düsseldorf. Dissertation, 1999. ISBN 3-631-35809-1
  12. ^ Karl-Heinz Fezer, Stefan Koos: International Business Law. In: Staudinger's commentary on the German Civil Code, EGBGB / IPR, revision 2006
  13. ^ BGH, judgment of October 13, 2004 , Az. I ZR 163/02, full text.
  14. ^ Federal Court of Justice - Hotel Maritim
  15. ↑ Stephan Bücker: Photography of objects owned by third parties is only allowed under certain conditions ( Memento from February 25, 2013 in the Internet Archive ), 2008
  16. ↑ David Seiler: Building Photography in the EU - News from the Hundertwasser House ( Memento from June 4, 2016 in the Internet Archive ), 2005.
  17. ↑ Thomas Hoeren : Internetrecht, p. 109 ff., Script at the University of Münster, September 2009 ( Memento from August 24, 2009 in the Internet Archive ) (PDF; 3.3 MB)
  18. ↑ Jan Philipp Oppermann: The collision law connection of international copyright violations: The universal understanding in copyright law . Nomos, Baden-Baden 2011, ISBN 978-3-8329-6269-2 .
  19. ^ Haimo Schack: Copyright and Copyright Contract Law . 8th edition. Mohr Siebeck, Tübingen 2017, ISBN 978-3-16-155676-0 .