From Patchwork to Network: Strategies for International Intellectual Property in Flux

Abstract:     
Nation-states, forming a patchwork, have made intellectual property laws for their respective territories and coordinated these laws in the classic Berne-Paris treaty regime, most notably by applying the principle of national treatment. However, with the emergence of global networks, contents typically protected by intellectual property laws increasingly cross many borders at once, and the national laws applicable to online transactions then tend more and more to enter into volatile conflicts. This article initially outlines short-term, strategic options with which private parties might respond to this paradigm shift and then asks how long-term, law-making methodologies should take account of such options in the light of public policy. In the short term, self-help measures, such as encryption, in tandem with system-specific software and contractual rules, can be used to supplement intellectual property laws both to protect contents online and to maximize profits from such contents. Also, conflicts of laws, as well as varying jurisdictional rules, can be manipulated in litigation between private parties with divergent interests, for example, between content-providers, service-providers, and end-users. It is here argued that, in the long term, recourse to the classic treaty regime coordinating the patchwork of national laws does not suffice to optimize the results of such strategies either for private parties or for the public. Guidelines are proposed to that end: (1) avoid patchwork law-making; (2) organize private-public initiatives to elaborate network law; and (3) formulate such law compatibly with diverse cultures.

JEL Classifications: K10, K33, K41, L82

Accepted Paper Series