The Role of Territoriality in Modern Intellectual Property Regime: Lessons from Japan

Mr Paul Jurčys

Abstract

The principle of territoriality has been subject to much criticism recently. It is often argued that the territoriality principle does no longer fit to the needs of cross-border exploitation of intellectual property products. Therefore, in order to facilitate international trade, increasing support is given in favour of extraterritoriality. This article introduces the debate concerning the territoriality principle and presents two recent cases decided by the Japanese Supreme Court where the territoriality was at stake. Based on this analysis, it is agued that debate on the territoriality principle should not be phrased as “either-or” question; instead it is argued that one should view territoriality principle in a broader perspective. Namely, Japanese cases support the idea that territoriality principle forms the basis of modern intellectual property regime and functions in consonance with other rules (choice of law rules, rules harmonising particular aspects of intellectual property or rules which could cover extra-territorial situations).

Conference Paper