Private International Law, Intellectual Property and the Internet
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.
AuthorsJohnson, Phillip Michael
- Theses