Intellectual Property and Private International Law

By James J. Fawcett; Paul Torremans | Go to book overview

General Editor's Preface

When in 1990 in the course of a critical commentary upon the holding in Tyburn Production Ltd v Conan Doyle [ 1991] Ch. 75 I advocated 'the construction of a much needed private international law of intellectual property' (61 B.Y.I.L. 202), I was, of course, advocating satisfaction of an obvious need. In the years that have elapsed since then, although some, albeit piecemeal, progress has been made, that need has become even more pressing. This has largely been as a result of advances in technology, both actual and prospective.

Historically the impact of private international law upon intellectual property issues was slight. This may have been in part due to the 'territorial' approach adopted by private international lawyers. The physical location of non-physical phenomena presented difficulty. Even in the immediate post-Beale era response to the criteria of 'closest connection', 'proper law', 'governmental interest analysis', etc., has not been free from difficulty.

However, whatever the explanation of the past failure of private international law to meet the need to accommodate problems in the area of intellectual property, that need is compelling. What is required is a comprehensive pattern of legal rules individually tailored to deal appropriately with a wide and diverse variety of issues. Whether this is to be satisfactorily achieved by statutory intervention alone is, especially in the light of the likelihood of continuing and fairly rapid development, doubtful. There is certainly room for creative judicial activity, which is now facilitated by the currently emerging flexible and justice orientated approach to private international law generally. Moreover, legal writing obviously has an important part to play in the achievement of the objective. The avowed aim of Oxford Monographs in Private International Law is to publish works of originality and quality on a number of important and developing areas of private international law. I think that both practitioners and academics will regard this volume as not only providing a detailed and illuminating analysis of the present position but as also constituting a major contribution to the long overdue evolution of a comprehensive and sophisticated private international law of intellectual property.

Wadham College, Oxford P. B. CARTER 1 May, 1998

-v-

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