International Intellectual Property, Conflicts of Laws, and Internet Remedies
Journal of Intellectual Property Rights (NISCAIR), vol. 10 (2005), pp. 133-140
8 Pages Posted: 20 Mar 2000 Last revised: 9 Aug 2016
Date Written: 2005
The notion of territoriality, as applied within the classic framework of choice-of-law analysis, is ambiguous. This ambiguity is illustrated in cross-border torts, in particular, as here considered, by the infringement of intellectual property. Classic analysis allows for localizing such infringement at diverse spots, for example, where acts triggering infringement occur or where harm or profits arise. This ambiguity is not often troublesome in a world of hard copies or products, but it leads to problematic cases in cyberspace where transactions cross borders worldwide almost instantaneously. Following classic choice-of-law analysis, courts then tend to vacillate increasingly in identifying different 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 applying their respective laws to control outcomes in the case at bar. It is argued that such 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 driving 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 respectively targeted or impacted as bases for injunctions or for compensatory monetary awards.
Keywords: intellectual property, cross-border infringement, conflicts of laws, territoriality, internet, remedies
JEL Classification: K10, K33, K41, L82
Suggested Citation: Suggested Citation