Identification of Lex Loci Protectionis in the Application of Law of Foreign-related Intellectual Property
Lex loci protectionis in the application of intellectual property law originates from Article 5(2)of the Berne Convention.However,regarding Article 5 of the Berne Convention,scholars have formed three different views:"lex loci protectionis","the law of the country of origin",and"non conflict of rules".Under the influence of the Berne Convention,countries have gradually adopted lex loci protectionis in their domestic intellectual property conflict law.However,the inherent dispute in Article 5(2)of the Berne Convention has determined the ambiguity in the meaning of lex loci protectionis as a connecting point.For this reason,some academic institutions have developed recommendation drafts on the conflict rules of intellectual property,which have significant reference value for understanding lex loci protectionis.Article 48 and Article 50 of the Law on the Application of Law in Foreign-related Civil Relations in 2010 stipulate that lex loci protectionis shall be the general principle for the application of foreign-related intellectual property.However,in judicial practice,there are disputes in the application of lex loci protectionis by the court,resulting in uncertainty and unpredictability in the application of the law.China should learn from the specific provisions of lex loci protectionis in relevant international legal documents and judicial practice,defining its meaning differently based on different types of intellectual property cases.
intellectual propertylex loci protectionisnational treatmentterritoriality
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