1.2- National rights – international scope

National rights. IP-rights are – as a general rule – national rights as all property rights are usually only rights that exist under particular national law. From a legal perspective, what is referred to as an author’s copyright or an inventor’s patent, consists of a bundle of national (or regional) copyrights or patents.

IP Treaties. 

Because of the fact that the potential use of intangible objects is not affected by national borders, intellectual property law has been an area of the law with a profound international character.

IP Treaties. IP-rights have gained a foothold in the ‘slipstream’ of the industrial revolution. This resulted in the creation of the Paris Convention for the Protection of Industrial Property of 1883 and the Berne Convention of 1886 for copyrights. These treaties provide that member states have to (i) establish IP-rights, such as patents, trade marks and copyrights, as part of their national laws, (ii) meet minimum requirements for these IP-rights, and (iii) grant these IPR-rights not only to their own citizens but also to citizens of treaty countries. It was because of these treaty obligations that countries such as The Netherlands and Switzerland had to introduce patent laws by the beginning of the 20th century. The TRIPS Agreement, as concluded in 1994 within the framework of the World Trade Organisation, underscores the importance of the international implications of IPRs, especially with respect to facilitating a global market in which emerging economies can rapidly expand.

International harmonization. Because of the impact of IP-rights on the functioning of global and regional markets, and because of the need to create a level playing field in those markets, national IP-rights are increasingly harmonized. This harmonization is partly due to international IP treaties like TRIPS, the Berne Convention and the Paris Convention. Within the European Union this harmonization is further realized through the introduction of a large number of directives that harmonize copyright, trade mark law, design rights and patent law. Although national (or regional) IP-rights therefore still exist, those national IP-rights have become more and more uniform both within the European Union as well as within the realm of the World Trade Agreement – of which the TRIPs-Agreement is an annex. Consequently national differences rapidly decrease, although they still are present and can be notorious.

Supranational IP rights. . The logical consequence of the need to create a level playing field on a regional or European (internal)market is that national IP-rights must give way to supranational IP-rights, which transcend national borders. The Benelux countries (Belgium, The Netherlands and Luxembourg) already created such supranational IP-rights with the introduction of a Benelux Trade Mark Act in 1970 and a Benelux Designs Act in 1975, which Benelux laws replaced the pre-existing national laws. In the nineties this development continued on a EU level, with the introduction of a Community Plant Variety Rights Regulation in 1994, a Community Trade Mark Regulation in 1996 and a Community Designs Regulation in 2002. These regulations introduced truly pan-European IP-rights next to the still existing national plant variety rights, trade mark rights and design rights.

European IP law. Because of many European directives that harmonize national IP rights and the introduction of pan-European community-IPRs, IP law of the EU Member States has since the nineties for the most part become a matter of European Union law instead of national law.

Infopaq-judgment. The traditional inclination to regard intellectual property rights as instruments of law and to disregard European or international law influences is therefore certainly outdated. The Infopaq- judgement of 17 July 2009 (IPPT20090716) stands out as an example of the unanticipated reach of the harmonization of copyright. The title of Directive  2001/29/EC indicates that only certain aspects of copyright and related rights are harmonized. However, the Court of Justice argued in Infopaq that in order to be able to determine whether an extract comprising 11 words can be found to constitute a “reproduction in part” of a newspaper article one also needs to define the work concept. The Court then held that a copyrightable work only encompasses “subject-matter which is original in the sense that it is its author’s own intellectual creation”. Thus the Court harmonized both the work concept (as requiring an “own intellectual creation”) as well as the scope of protection by indicating that a fragment of 11 words may constitute a  “reproduction in part” if that extract “contains an element of the work which, as such, expresses the author’s own intellectual creation”.

Private international law. The exploitation of intangible objects protected by IP-rights is not restrained by national borders and these intangibles can be published worldwide with one simple click of a mouse. Intellectual property rights, however, still have a national or regional footing. As a result, IP law is more and more confronted with conflict of laws issues. For instance, the question which law is applicable to a particular act – such as downloading or uploading a work from or to the internet – and thus determines whether that act is an infringement of IP laws or not.  Similarly, the question arises which national law decides to whom national or regional IP-rights should be originally granted, or the question which national law determines whether a foreign IPR can be validly transferred and assigned or pledged.