Cross-Border Intellectual Property Litigation
1. What is the territoriality principle and how does it impact cross border intellectual property litigation?
Throughout history, we have witnessed the territorial conception of national and international intellectual property law face an array of global challenges. According to the principle of territoriality, the possibility of protecting an IP right is limited to the territory of the country where the right is granted. In other words, it is fundamentally domestic. As general rule this would signify that a country’s IP laws would not receive application outside of their borders. In the case Aramco, the Supreme Court as a matter of statutory contraction, states that U.S. courts are to presume “that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial boundaries of the United States.” The party who makes a claim with respects to extraterritorial application bears the burden of showing the “affirmative intention of Congress clearly expressed”. By establishing this presumption against extraterritoriality the Supreme Court echoes the importance concerning the principle of territoriality. Thus, U.S Congress has authority to assert extraterritoriality of its laws only under exceptional circumstances.
The principle of territoriality forms the basis for both national and international IP laws as well as multilateral treaties on intellectual property protection and this is considered an international standard principle. Furthermore, due to the possibilities of worldwide communication and trade, we have seen a dramatic increase in multi-territorial IP cases. This is one of the reasons why the principle of territoriality is coming under increasing pressure from the international community. In an attempt to harmonize national and international intellectual property, certain treaties such as the Berne Convention for the Protection of Literary and Artistic Property, the Paris Convention for the Protection of Industrial Property and TRIPS were put into effect. Although these treaties primarily impose obligations among countries, they do not directly involve IP holders. The Berne Convention and the Paris Convention only impose minimum requirements, but provide no details as to how to enforce their respective rights. For many treaties, the only recourse for failure to comply is for the country to go to the International Court of Justice and this requires the defending country to agree to such a procedure. On the other hand, TRIPS links IP obligations to trade and is under the World Trade Organization. If a country fails to comply with its obligations, the complaining country may bring it before the WTO’s arbitrary panel. The WTO panel has the power to create and enforce sanctions against the party that failed to comply.
I believe that an important reason for the growing tension in the international community stems from the issue of territoriality pertaining to the notion of moral rights. It is clear that for many years, common law and civil law countries have generally had opposing views when it comes to the notion of copyright law. As a matter of fact, the United States has always held a very utilitarian view of copyright, which is primarily in place to benefit the public. This is reiterated in the Copyright and Patent Clause, which states that it is “to promote the progress of science and the useful arts”. In continental Europe, however, countries such as Germany and France adopted a very different approach, one that rooted in the idea that the author has a kind of spiritual connection to their work. As Kant and Hegel put it: an author’s work is an extension of his personality. Under article 6bis, the Berne convention provides a minimum requirement of what the laws should be. If a country chooses to provide its citizens with more rights, then it cannot discriminate against citizens of another country. It is imperative to...
Please join StudyMode to read the full document