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JIPR Vol.10(2) [March 2005] >


Title: International Intellectual Property, Conflicts of Laws, and Internet Remedies
Authors: Geller, Paul Edward
Keywords: Territoriality
private international law
conflicts of laws
international public policy
ordre public international
intellectual property
conventions
infringement
remedies
Issue Date: Mar-2005
Publisher: CSIR
Abstract: The notion of territoriality, as applied within the classic framework of conflicts analysis, is ambiguous. This ambiguity is illustrated by cross-border torts, for example, the infringement of intellectual property. Classic conflicts analysis allows for localising such infringement at diverse spots, for example, where acts triggering infringement occur or where damages take place. This ambiguity is not often troublesome in a world of hard copies or products, but it leads to problematic cases in cyberspace where transactions cross borders worldwide almost instantaneously. Following classic conflicts analysis, courts tend to vacillate between different arguable countries of infringement, and they thus risk applying the law of one country or another arbitrarily across any global network. This article proceeds from the framework of interest analysis that would resolve any conflict of laws by considering the public policies of the jurisdictions with stakes in the outcome of the resolution. Its premise is that diverse interests from one country to the other are best optimized by following the public policies that underlie the community emerging between countries in the relevant field of law. In the field of intellectual property, courts best look to how policies underlying the international treaty regime, effectively the Berne-Paris/TRIPS regime, compel remedies. As a rule, these policies favour applying the laws of the countries whose markets are targeted or prejudiced, respectively, as bases for injunctions or compensatory monetary awards. Exceptionally, the law common to most of the overall marketplace being targeted may be applied, notably as the basis for enjoining the global hemorrhaging of protected matters.
Page(s): 133-140
ISSN: 0971-7544
Source:JIPR Vol.10(2) [March 2005]

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