The Private International Law of Intellectual Property

Abstract:

Although it is one of the most globally interconnected bodies of law, intellectual property law has occupied only a relatively specialized niche in private international law. This article considers when and how intellectual property rights can raise questions of private international law, and how Canadian law, in particular, deals with those questions. Intellectual property cases raise issues not only of territorial jurisdiction, which are common to any civil litigation, but also of subject-matter jurisdiction. The latter question—namely, whether a court has any jurisdiction to adjudicate on the validity or infringement of a foreign intellectual property right—is undecided in Canada, but recent cases elsewhere highlight the problem. The Canadian law on the enforcement of foreign monetary and non-monetary awards in intellectual property cases is evolving. Lastly, although choice of law questions in intellectual property are rare, the territorial reach of Canadian law has been extensively considered in the case law.