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Commons:Lex loci protectionis

Shortcut: COM:LEX Lex loci protectionis is the legal principle in intellectual property law that "the law of the country in which legal protection for the intellectual property is claimed" applies.[1] Although the principle is a longstanding one, the practical application of lex loci protectionis is uncertain within and between countries.

The practical consequence for Commons is that material from country A which may be acceptable to host based on country A's laws (for example, country A consider the work to be in the public domain) may not be acceptable to host based on country B's laws. This matters because infringement under country B's laws may still be actionable, especially for reusers in that country. In principle, Commons might need to consider every country's copyright law! Since this is clearly impractical, Commons:Licensing policy requires material to be either freely licensed or in the public domain in at least the source country and the United States.[2]

In terms of satisfying the Commons:Licensing policy, lex loci protectionis means that the copyright laws of the source country have no relevance in deciding about copyright infringement in the United States. (The exception is where US law explicitly refers to the copyright status of a work elsewhere, for example in deciding URAA restoration of expired copyright.) Application of lex loci means, for example, that in deciding whether a work made and published abroad violates copyright in the US, it is US Freedom of Panorama rules which apply, not the source country's. However, in practice it is unsettled whether and how lex loci protectionis will be applied in real world US legal cases involving freedom-of-panorama elements - see Commons:Freedom_of_panorama#Choice_of_law.

Contents

Rule of the shorter termEdit

Under lex loci protectionis, works from long-copyright country A have a short copyright term in short-copyright country B, but works from country B enjoy long copyright protection in country A. This inequality may be considered unfair. Because of this, some countries provide a partial exception to lex loci protectionis intended to provide for reciprocity between countries' copyright laws. If long-copyright country A uses the en:Rule of the shorter term, works from short-copyright country B will be protected in country A for at most as long as they are protected in country B. This gives the same protection for the country B work within country A as country A work has in country B. However, the rule applies only to the length of protection; all other aspects of protection are still covered by country A's copyright rules.

Table showing case where rule of shorter term applies (pma = post mortem auctoris, after the death of the author)
Protection in Country A
(70 years pma)
Protection in Country A
(70 years pma, rule of shorter term)
Protection in Country B
(50 years pma)
Works from Country A 70 years pma 70 years pma 50 years pma
Works from Country B 70 years pma Country B's 50 years pma 50 years pma

For enforcing Commons:Licensing policy it is important to know that the United States does not use the rule. This means that works can be copyrighted in the US where copyright has expired in the country of origin (see COM:URAA).

For a summary of which countries use the rule, see en:Rule_of_the_shorter_term#Worldwide_situation.

ExamplesEdit

ReferencesEdit

  1. en:Lex loci protectionis (version cited)
  2. Commons licensing policy must respect US law because the Wikimedia Foundation is based in the United States. The source country requirement is by decision of the Commons community.
  3. Berne Convention Article 7.
  4. Berne Convention Article 16.

See alsoEdit