International Intellectual Property, Conflicts of Laws, and Internet Remedies

Abstract:     
The notion of territoriality, as applied within the classic framework of conflicts analysis, is ambiguous. This ambiguity is illustrated by cross-border torts, for example, the infringement of intellectual property. Classic conflicts analysis allows for localizing such infringement at diverse spots, for example, where acts triggering infringement occur or where damages take place. This ambiguity is not often troublesome in a world of hard copies or products, but it leads to hard cases in cyberspace where transactions cross borders worldwide almost instantaneously. Following classic conflicts analysis, courts tend to vacillate between different arguable countries of infringement, and they thus risk applying the law of one country or another arbitrarily across any global network. This article proceeds from the framework of interest analysis that would resolve any conflict of laws by considering the public policies of the jurisdictions with stakes in the outcome of the resolution. Its premise is that diverse interests from one country to the other are best optimized by following the public policies that underlie the community emerging between countries in the relevant field of law. In the field of intellectual property, courts best look to how policies underlying the international treaty regime, effectively the Berne-Paris/TRIPs regime, compel remedies. As a rule, these policies favor applying the laws of the countries whose markets are targeted or damaged, respectively, as bases for injunctions or compensatory monetary awards. Exceptionally, home law alone may be applied, notably as the basis for enjoining the global hemorrhaging of protected matters or for punitive monetary awards to deter piracy.

JEL Classifications: K10, K33, K41, L82

Accepted Paper Series