Chapter 5: Intellectual property rights and private international law
As discussed in the foregoing chapters, certain works created in outer space qualify for patent and copyright protection. While intellectual property law is territorial, use of space-created works normally involves an international element. This leads to questions of jurisdiction and choice of law, both in terms of validity and infringement.
Issues of jurisdiction and choice of law fall under the area of the private international law, which is also known as the conflict of laws.644 When a legal dispute involves a foreign element, private international law comes into play. Normally, foreign elements in a dispute may arise from foreign domicile, multi-nationalities of parties and a foreign location in terms of the place where a harmful event occurs or where any resulting damage is experienced. There is no doubt that when cases involving foreign elements take place on earth, private international law rules will be applicable. However, in the case of a dispute arising in outer space – where no state can claim its territory – it is questionable whether private international law rules will have a role.
Part 1 of this chapter concerns issues of proper jurisdiction. The analysis will examine which court can assert its jurisdiction over particular disputes. Having determined which courts are competent to assume jurisdiction, Part 2 addresses issues regarding choice of law. Finally, Part 3 deals with recognition of judgments issued by foreign courts. The hypothetical cases established in the previous chapters will also be used for discussion in...
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