From Patchwork to Network: Strategies for International Intellectual Property in Flux

Nation-states, forming a patchwork, have made intellectual property laws for their respective territories and coordinated these laws in the classic Berne-Paris treaty regime, most notably by applying the principle of national treatment. However, with the emergence of global networks, creations typically protected by intellectual property laws increasingly cross many borders at once, and the national laws applicable to online transactions and infringement tend to enter into more frequent and volatile conflicts. This article initially outlines short-term, strategic options with which private parties might respond to this paradigm shift and then asks how long-term, law-making methodologies should take account of such options in the light of public policy. In the short term, self-help measures, such as encryption, in tandem with software and contractual rules, can be used to supplement intellectual property laws both to protect contents online and to maximize profits from such contents. Also, choice-of-law approaches, as well as varying jurisdictional rules, can be manipulated in litigation between private parties with divergent interests, for example, between content-providers, service-providers, and end-users. It is here argued that, in the long term, recourse to the classic treaty regime coordinating the patchwork of national laws does not suffice to optimize the results of such strategies for private parties or for the public. Optimization guidelines are proposed: (1) avoid patchwork law-making; (2) organize private-public initiatives to elaborate network law; and (3) formulate such law compatibly with diverse cultures.