Legal conflicts and problem-solving research on intellectual property law

Author: Zhu Lanye and Liu Xiaohong, Editors
Publisher:
Publish Date: 2004-12-01
Features: Intellectual property is the exclusive right that people legally enjoy over intellectual achievements created through mental labor. It originated from the "privilege" of feudal society. This privilege could be granted by a monarch personally, by a feudal state, or by local officials representing the monarch. The origin of intellectual property determines its legal characteristics that distinguish it from other general civil rights, including intangibility, exclusivity, and time-bound nature, especially its strict territoriality. The territoriality of intellectual property refers to the fact that intellectual property rights arise under the laws of one country (or region) and are only effective within its territory. Beyond this territory, they are not recognized or enforceable. Traditional conflict of law theory posits that there are no legal conflicts in the field of intellectual property, based on its territoriality—that is, since intellectual property rights are only valid in the country or region that granted them. Outside this jurisdiction, the original rights cease to exist, rendering a country's laws inapplicable extraterritorially. Consequently, it was believed that legal conflicts would not arise in the realm of intellectual property. In traditional private international law, issues concerning intellectual property were addressed from the perspective of "unified substantive norms" to explain international protection measures rather than from the perspective of "conflict norms" to determine legal application principles. Similarly, due to the territorial nature of intellectual property, the theory and practice of private international law long insisted that only courts in the place of registration could exercise jurisdiction over intellectual property disputes within their territorial scope, with no country's court having the authority to exercise jurisdiction over foreign intellectual property. This led to a large number of jurisdictional conflicts of inaction.
After World War II, with the widespread circulation and application of technological achievements globally, as well as the innovation and improvement of corresponding transportation and media services, international economic and social exchanges became increasingly frequent and close, with technological cooperation intensifying and mutual dependence and integration becoming more prominent. As science and technology, as well as international commercial trade and other economic exchanges, continued to develop, the international market for knowledge products began to form and grow. In international trade, the role of intellectual property has become increasingly significant. The territoriality of intellectual property has become one of the obstacles to the development of international technology trade. The contradiction between the territoriality of intellectual property and the international nature of technological achievements has intensified. Intellectual property rights holders in various countries increasingly hope that their rights and interests will be recognized and protected abroad, to the greatest extent possible, to safeguard their rights and interests. As a result, exploring pathways for international protection of intellectual property has become crucial, and the emergence of international treaties on intellectual property has made the occurrence of legal conflicts in this field possible.
With the emergence and continuous development of internationalization in intellectual property, intellectual property protection has evolved from domestic to international, and from bilateral to multilateral frameworks. Its strict territoriality has gradually weakened and even been challenged due to the establishment and development of international coordination systems for intellectual property and the advancement of private international law legislation in various countries. From the conflict of law legislation of some countries, it can be seen that legal conflicts in intellectual property have become one of their objects of regulation. Since the 1950s, many countries have no longer rigidly adhered to the view that foreign intellectual property laws are ineffective in their jurisdictions. Instead, they have applied foreign law to certain aspects of intellectual property, subject to certain conditions. The result of breaking through the territoriality of intellectual property has been the emergence of a large number of legal conflicts concerning intellectual property.
At the same time, the development of science and technology has made the limitations of the territorial jurisdiction principle in intellectual property increasingly evident: it fails to provide necessary protection for foreign intellectual property and is also ineffective in protecting its own intellectual property. Today, as intellectual property infringement disputes become increasingly complex, many countries, especially developed nations with advantages in technology and trade, have made numerous attempts to break through the territorial jurisdiction of intellectual property.
As international protection of intellectual property continues to develop, people cannot help but ask: Will there come a day when its inherent territoriality is completely dismantled? There are differing views on this: one holds that international treaties on intellectual property have neither caused nor can they cause the disappearance of territoriality; another argues that breaking through the territoriality of intellectual property is possible and necessary. Although the protection provided by international treaties on intellectual property does not break or negate territoriality but is instead based on full respect for it, strict territoriality is not an indispensable inherent attribute of intellectual property. It is the refusal or lack of recognition of extraterritorial effects of intellectual property and its legislation, rather than the inherent inability of intellectual property to have extraterritorial effects. However, some argue that while breaking through the territoriality of intellectual property is possible and necessary, it remains difficult for countries to abandon territoriality, even if it is indeed artificial rather than inherently incapable of having extraterritorial effects.
Regardless of whether the territoriality of intellectual property will be completely dismantled in the future, from the current perspective, as international economic and trade exchanges become increasingly frequent, strict territoriality has gradually weakened and has been partially broken in limited scopes, and legal conflicts in intellectual property have gradually been recognized and valued. Due to various reasons, intellectual property law may not achieve the extraterritorial effect of other civil rights in the foreseeable future. However, how to resolve such transnational legal conflicts and jurisdictional conflicts has become an urgent issue in current theory and practice.