Concluding Remarks: Territoriality, International Governance and Cross-Border Litigation of Intellectual Property Claims

Abstract

The spectacular technological change and economic expansion, which has come to characterize the so-called age of globalization, has brought to the fore the transnational legal aspects of intellectual property and information technology, as established rules and longstanding conceptual premises are being questioned.

The original international system of intellectual property protection was put in place in the mid- to late nineteenth century. At that time, intellectual property rights were effectively perceived as statutory creations of the local sovereign. International instruments sought accordingly to extend such national regimes to foreign rights as they entered the forum’s territory, often on the basis of reciprocity. The traditional paradigm was epitomized by the so-called principle of territoriality: national jurisdiction could only extend over rights granted, and infringed, in forum territory. Applicable law (lex protectionis) would only be forum law (lex fori).

Today, we have to deal with a number of conceptual shifts that challenge the traditional paradigm. policymakers view intellectual property rights less as privileges/entitlements granted by the State and more as absolute rights to be enforced and protected globally; industry has replaced the creator as the pivotal force of IP law; intellectual property itself is becoming an ever specialized field; ubiquity may they key word to characterize the economics of both legitimate exploitation and infringement of IP entitlements, and this makes the territorial model of protection appear increasingly out-of-date. Reports of the death of territoriality have nonetheless been greatly exaggerated.

Keywords: territoriality, private international law, jurisdiction to adjudicate

JEL Classification: O34, K41