Rapid developments of technology has facilitated the transmission and duplication of intellectual property around the world and, thus, given rise to international disputes as well. An increasing number of international disputes relating to intellectual property raise difficult questions on the territoriality of intellectual property, principles on conflict of laws and jurisdiction. This essay is focused mainly on the conflict-of-intellectual-property-laws principle and designed to propose what may be called an international private intellectual property law. The applicable law relating to intellectual property disputes is basically `lex loci protectionis,` the law of the country where the protection is claimed of where infringement occurred. The principle of `lex loci protectionis` is often interpreted as the basec principle which underlies the principle of national treatment in the Berne Convention, UCC, and the WTO/TRIPs. The principle of `lex loci protectionis` may also viewed as consistent with Section 13 of the Private International Law of Korea which provides that the applicable law in cases of tort should be the law of the country where the tort occurred. `Lex loci protectionis` is thus applicable to relevant issues such the validity of intellectual property right, its duration, the method of its transfer, its effect, and its scope. The principle of `lex loci protectionis` and Section 13 are not always the same in the sense that any substantial difference in the amount of damages to be awarded by the court of the country where infringement occurred and those by the court of the country where the lawsuit is brought may not be allowed under Section 13. In addition, when a remedy to be awarded under `lex loci protectionis` is found to be contrary to the public order and the fundamental principles of law in Korea, the remedy under `lex loci protectionis` may not be applicable to the intellectual property disputes under Section 5 of the Private International Law of Korea. One of possible examples with regard to the public order issue could be any punitive damages to be awarded under the American statutes. The principle of `lex loci protectionis` will, however, have to face substantial difficulties and dome changes in its application, since rapid developments of information technology especially those of internet technology have made is possible to render works of authorship and invention pervasively and simultaneously accessible throughout the world. There may arise serious questions as to whether `lex loci protectionis` is appropriate at all, when a substantial number of infringement occurs at the same time in several countries whose intellectual property laws offer substantially different protection. A legislative response to these questions could be seen clearly in the European Council Direction 93/83/EEC of September 27, 1993 on the Coordination of certain Rules concerning Copyright and Rights related to Copyright applicable to Satellite Broadcasting and Cable Retransmission, providing that permission for satellite broadcasting shall only be required in the country where the act of communication to the public or the act of uploading occurred. There are also statutory provisions which extend their protection to infringing activities abroad, i.e. in cases of importing of infringing goods or in cases of exporting component for the purpose of infringing combination abroad. It also appears that extraterritorial application of U.S. intellectual property laws by some courts is a sort of judicial response to those problems. `Lex loci protectionis` does not always apply to all the issues relating to licensing agreements. When there is a contractual clause on the applicable law, then the disputes may be resolved in accordance with the choice of law clause, except for the issues relating to the validity of intellectual property right, its duration, method for its transfer, and so on. What happens if there is no choice
(0)
(0)