Intellectual Property Infringement in Global Networks: The Implications of Protection Ahead of the Curve

Abstract

Conventional wisdom indicates that in relation to the minimum standards of intellectual property protection prescribed by the TRIPS Agreement, protection ahead of the curve does not assist states in establishing comparative advantage in new technologies. Accordingly, while the TRIPS Agreement expressly permits Member states to implement domestic protection in excess of these baseline levels, the potential for regulatory diversity and concomitant transborder friction is minimized. The market for digital products, however, is subject to an inherent jurisdictional ambiguity which may displace this conventional wisdom, resulting in either over- or undercompensation of local innovators at the expense of foreign imitators.

Solving the puzzle of Internet jurisdiction is not the primary concern of this analysis. Instead, the question for determination is whether domestic courts possess the necessary institutional competence to address jurisdictional ambiguity in virtual commerce in a manner that takes into account the implications for international trade, particularly in relation to developing and least developed states. Although recent initiatives have focused exclusively on reform of the procedural rules of private international law, the author recommends the WTO as the most appropriate forum in which to resolve tensions between commercial rights holders, putative infringers and the interests of states with varying levels of economic and technological capacity. Resolution of the problem implicates both trade and non-trade values, and domestic courts lack the necessary institutional competence to adjudicate these complex issues.

Keywords: intellectual property, international trade, interne, WTO, ecommerce, jurisdiction, TRIPS