Trade, Investment and Intellectual Property
Edited by Anselm Kamperman Sanders
Chapter 11: The hidden conflict-of-law rule in the Berne and Paris principle of national treatment
The protection of intellectual property has traditionally been governed by the lex loci protectionis, that is, the law of the country for which protection is claimed. If, for example, patent protection is claimed for the Netherlands, Dutch law will apply. Today, the predominance of the lex loci protectionis conflict-of-law rule is, however, no longer a matter of course. Critics argue that it sits uneasily with the age of globalisation and the internet. Some authors have suggested allowing some exceptions to the lex loci protectionis rule, for example party autonomy. There have also been proposals to narrow the scope of the lex loci protectionis rule by splitting off certain aspects of the protection and subjecting these aspects to other conflict-of-law rules. Such proposals have gained some headway in case law and in legislation. They are, however, controversial. Should one challenge the hegemony of the traditional lex loci protectionis rule? This inevitably raises the question what is the law currently in force in this field? Current opinions on this vary widely. The controversy mainly revolves around the question of whether the two most important intellectual property treaties, that is, the Berne Convention of 1886 and the Paris Convention of 1883, contain a conflict-of-law rule. These treaties cover virtually all the inhabited territories of the globe, and, within their scope, they prevail over all other treaties.
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