This book is concerned with the application of the rules of private international law to intellectual property cases. Private international lawyers have largely ignored this topic, and it has been left to intellectual property lawyers to discuss this. This is a pity. It is a topic which raises unique questions for the private international lawyer which deserve an answer, and at the same time tells us much about the rules of private international law that are being applied. The aim of the book is to fill this gap in the literature. The emphasis in the book is on private international law rather than on intellectual property law. Nonetheless, it is hoped that intellectual property lawyers will find much to interest them here.
The book is divided up into sections to reflect the classic issues in private international law: jurisdiction; choice of law; and recognition and enforcement of foreign judgments. Within each section, there are chapters to reflect the major issues that arise in relation to intellectual property: the creation of intellectual property rights; the ownership of such rights; the commercial exploitation of such rights by means of licensing and other agreements; and the protection of such rights by means of the tort of infringement and complementary causes of action.
A proper understanding of how jurisdictional and choice of law problems arise requires some knowledge of the substantive law background. Moreover, when it comes to the application of the rules of private international law, it is necessary to characterise the issue and the cause of action and, as regards the latter, to identify the constituent elements thereof. There are limitations on jurisdiction which apply in relation to certain types of intellectual property right but not others. The approach adopted, therefore, is to start the treatment of each new issue with a discussion of the substantive law background. This is followed by a discussion of how jurisdictional or choice of law problems arise. Most of the book, though, is taken up with the discussion of the relevant rules of private international law and their application in the context of intellectual property law. A major theme of the book is the extent to which there are special rules of private international law for this area and whether there should be such rules. Alternative private international law solutions will be considered by looking at law in other jurisdictions, such as the United States, France, Germany, Austria, Switzerland and the Netherlands. Where appropriate, proposals will be put forward for a better solution.
We have relied upon the help and guidance of friends and colleagues in preparing this book and would like particularly to thank Professor