Transnational Regulation of Intellectual Property Rights Through Cooperation

The fundamental problem of the international intellectual property (IP) system has always been that the rights of inventors, authors, etc., are territorially limited. There is no world patent or world copyright, but only a bundle of national IP rights. At the same time, communication and commerce do not come to a halt at national borders. This discrepancy between national regulation and transnational exchange impedes the enforcement of IP rights in practice.

The project analyzed from a legal point of view the legality and legitimacy of different forms of cooperation between public and private actors who thereby try to mitigate or even overcome the drawbacks of a mosaic of national IP rights in a largely globalized economy. Three forms of cooperation can be distinguished:

Strictly private cooperation between right holders occurs in form of networks of contracts. These contractual networks enable the transnational use of knowledge in spite of a multitude of rights (patent pools, collecting societies, Open Source, Wikipedia).

Cooperation between the judicial and executive branches: Since the legislative branch is incapable of acting due to the unanimity principle, a tendency of cooperation between other public authorities can be observed. Courts consider relevant foreign decisions during their decision-making-process (for instance concerning the patentability of certain inventions), which leads to a harmonization of judicial practice even in the absence of international or European law. In some areas of law (insolvency law, family law), courts already collaborate with each other to cope with transnational insolvency proceedings and family matters. Such cooperation is now being discussed in the context of multistate IP proceedings. Patent offices also collaborate and exchange information in order to handle parallel patent applications.

Cooperation between public authorities and private individuals: Finally, cooperation also takes place between public authorities and private parties. The EU Commission mediated memoranda of understanding between publishers, libraries and collecting societies for the purpose of the digitalization and accessibility of out-of-commerce works, and between online retailers like eBay and right holders concerning the enforcement of trademarks and copyrights on these platforms. The European Observatory on Counterfeiting and Piracy has been created to reduce enforcement loopholes by enabling right holders to join forces and share information. Additionally, the Observatory is developing best practices on enforcement.

Several dissertations (legal PhDs) addressed such cooperation. In her dissertation, for which she received the 2015 Baker & McKenzie Prize of the Goethe University faculty of law for the best legal dissertation in the area of commercial law, Anja Becker examined how parallel IP infringement proceedings before courts in different countries are coordinated procedurally and whether an active cooperation between courts of different countries can be legal and legitimate. Dominik König’s dissertation explored whether classical contract law and theory can provide a stable legal framework for global, heterarchical Open Source license networks. In his dissertation, Michael A. Kümmel showed how large online content platforms like YouTube and Facebook implement uniform global standards when enforcing copyrights and trademarks, notwithstanding divergences in the applicable IP rights. Finally, in her dissertation submitted in 2017, Nora Luisa Hesse, who worked in the project between 2013 and 2016, criticized the close cooperation between customs offices and private IP rights holders based on the current EU Borders Measures Regulation, which she argued contradict the border measures set out in the WTO TRIPS Agreement.

The findings of these studies informed Alexander Peukert’s foundational article, published 2017 in the renowned Rabel Journal of Comparative and International Private Law, in which he provides an overview of the structures, actors and aims of the global unification of IP law. In this article, Peukert not only addresses international treaties as the classical tool of formal cooperation between states but also phenomena of legal unification without codification (“beyond the state”), in particular private regulation by contracts (e.g. Open Source licenses) and technology (regulation of online platforms) and the often overlooked but very important administrative cooperation between patent offices.

In sum, the results of this legal research provide valuable examples of and insights into the formation of transnational commercial law in the shadow of state law.

The most important publications of this project:

Peukert, Alexander: “Vereinheitlichung des Immaterialgüterrechts: Strukturen, Akteure, Zwecke“, in: Rabels Zeitschrift für ausländisches und internationales Privatrecht 81(1), 2017, pp. 158–193.

Hesse, Nora Luisa: Das EU-Grenzbeschlagnahmeverfahren in Deutschland und seine Vereinbarkeit mit dem TRIPS-Abkommen, Dissertation, Frankfurt am Main (Primary review on March 21, 2017).

Kümmel, Michael Andreas: Die Implementierung der Haftung von Host-Providern für Immaterialgüterrechtsverletzungen, Dissertation, Frankfurt am Main, 2016.

Becker, Anja Andrea: Verfahrenskoordination bei transnationalen Immaterialgüterrechtsstreitigkeiten, Berlin: Duncker & Hublot, 2016.

König, Dominik: Das einfache, unentgeltliche Nutzungsrecht für jedermann, Göttingen: Vandenhoeck & Ruprecht unipress, 2016.

 
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