Private International Law, Intellectual Property and the Internet
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Intellectual property is a territorial right; yet despite this there are a number of
international treaties mandating standards. Historically, this has allowed private
international law and intellectual Property to ignore each other. With the advent
of the Internet this benign neglect has not only ended, but there has been a flood
of new ideas on reconciling the territoriality of intellectual property with the
global nature of the Internet. These new approaches attempt to deal with the
problems associated with international intellectual property litigation - the
uncertainty of which law applies, multiplicity of claims andforum shopping -
each of which increases the cost for both users and proprietors of intellectual
property. This thesis examines these approaches, using wealth maximisation and
economic efficiency, and determines that none of themfits within the constructs of
an efficient solution. However, the proposalfor a single applicable law, enabling
consolidation, is seized upon as efficient. It then follows that the principle of
consensual exchange, enabling private parties to agree which court has
jurisdiction and which law applies (rather than States mandating these matters),
is the efficient solution to the selection problem. This consensual exchange
proposal contains two paradigms - the bilateral and the unilateral - which in
turn are broken down into ten propositions. The bilateral paradigm permits
parties to select not only the jurisdiction to adjudicate the dispute, but also the
universal applicable law. The unilateral Paradigm uses the doctrine actor
sequitur forum rei, with the universal applicable law being selected ex ante by the
proprietor. Finally the propositions are placed within the context of international,
regional and domestic law (of the four target jurisdictions: England and Wales,
the United States, France and Germany) and questions of compatibility are
assessed.
Authors
Johnson, Phillip MichaelCollections
- Theses [4490]