Intellectual Property in the Conflict of Law: The Hidden Conflict-of-Law Rule in the Principle of National Treatment is a must-have for anyone in international intellectual property. This treatise breaks down the history and complexity of the international intellectual property and the conflict-of-laws. The author offers solutions to problems that arise within this field. This treatise was initially published in Dutch in 2009 and was translated into English in 2022. The Verenigning Intellectuele Eigendom and the Leiden University Fund sponsored the translation. Where there are updates to the treatise, they are separate, indented paragraphs headed with ‘Update.’ Any updates are limited to essential case law and legislation until May 1, 2021.
The book has an introduction, eight chapters divided into two parts, and concludes with a summary chapter. Each chapter starts with a table of contents that allows readers to quickly find the topic they seek. Each paragraph is numbered, making navigating the treatise easy. The structure and paragraph numbers are the same as the original Dutch version. Within each chapter, each section is summarized so the reader can quickly understand what each section is saying.
Part I discusses the genesis and history of the principle of national treatment found within the Berne and Paris Convention from its birth in the 1800s to today. The author discusses that growing globalization and the rise of the internet fuel the idea that a new conflict-of-law rule should be designed for intellectual property. After a deep dive into the history of conflict-of-laws in intellectual property, the author shows that the conflict-of-law set out in the Berne and Paris Convention is sufficient in today's modern world. Chapter One discusses the history behind the birth of the principle of national treatment in copyright law as the solution to the state of the lawlessness of foreign works. Chapter Two discusses the genesis of the current Article 5(1). This chapter describes problems that arose out of the system of bilateral treaties and that the solution to the issues was the Berne Convention. Chapter Three describes the changes made to the convention to address this. The author points out several present-day misconceptions about the Berne Convention within these changes. The conflict-of-law rule in the Berne Convention is a pre-Savignian conflict-of-law rule, leading to the present-day misconception that the principle of national treatment in Article 5 of the Berne Convention does not contain a conflict-of-law rule. Chapter Four analyzes the development of the principle of national treatment in industrial property before and after the Paris Convention. The same misconception under the Berne Convention arises with the Paris Convention. This misconception is caused by people viewing the statutist solution of the principle of national treatment is viewed with contemporary, Savignian eyes. This misconception distorts the application of the principle of national treatment.
Part II discusses the principle of national treatment and how it is interpreted today, along with problems that arise with modern-day misconceptions of the principle of national treatment. Chapter Five takes up a substantial portion of the book, discussing the obfuscation concerning the conflict-of-law rule in the principle of national treatment. This chapter explores why the Berne Convention and the Paris Convention conflict-of-law rule in the principle of national treatment are no longer understood as the drafters intended. The treaties have stayed the same, but our interpretations of particular sections have changed. The author examines how the obfuscating of the principles concerning conflict-of-law and intellectual property occurred over time and why. The author examines the different interpretations of the treaties and the problems arising from said misinterpretations. This treatise explores the evolution of the interpretation of the Paris and Berne Convention. In order to understand the evolution of the interpretation of the principle of national treatment in the Berne and Paris Conventions, the author explains the history of both conventions and how political and economic interests influenced the evolution of the interpretation. The author discusses how today's misconception of the principle of national treatment is caused by conflict-of-laws going through several substantive changes between the nineteenth century and today. Chapter Six discusses the aliens-law rule in the principle of national treatment and its problems. Chapter Seven explores protecting the rights of authors of literary and artistic works.
The end of the book explores the reformulation of and reformation of intellectual property treaties to solve the obfuscation and misinterpretations of treaties in effect. The author argues that the exclusive lex loci protectionis conflict-of-law rule is the best conflict-of-law rule for international intellectual property. The author explains that the Berne Convention and the Paris Convention are adequate treaties for a conflict-of-laws problem because both treaties contain the lex loci protectionis conflict-of-law rule. Because of lex loci protectionis conflict-of-law rule, Article 5 can be amended to make a more desirable conflict-of-law rule. The author proposes some changes to the Paris and Berne Convention that would downsize the conventions, making them purer, cleaner, and easier to apply.
The one complaint I have about the book is that some blocks of text were not translated into English. If there is a reason these sections were not translated, a notation of why the author decided not to translate should have been in the footnotes. For people whose working language is English, this can be frustrating.
I recommend this treatise for any firm that practices international intellectual property or for upper-level law courses on international intellectual property. I would not recommend this book to a novice law student or attorney. A background in conflict-of-law and intellectual property is needed to comprehend the text.
