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Kyoto Guidelines Kyoto Guidelines: Applicable Law International Law Association’s Guidelines on Intellectual Property and Private International Law (“Kyoto Guidelines”): Applicable Law by Marie-Elodie Ancel, Nicolas Binctin, Josef Drexl, Mireille van Eechoud, Jane C Ginsburg, Toshiyuki Kono, Gyooho Lee, Rita Matulionyte, Edouard Treppoz, Dário Moura Vicente Abstract: The chapter “Applicable Law” of the registered rights is governed by the lex loci protec- International Law Association’s Guidelines on In- tionis whereas the law of the closest connection is tellectual Property and Private International Law applied to determine the ownership of copyright. For (“Kyoto Guidelines”) provides principles on the choice contracts, freedom of choice is acknowledged. With of law in international intellectual property matters. regard to ubiquitous or multi-state infringement and The Guidelines confirm the traditional principle of the collective rights management in the field of copyright, lex loci protectionis for the existence, transferabil- the Guidelines suggest innovative solutions. Finally, ity, scope and infringement of intellectual property the chapter contains a Guideline on the law applica- rights. The law applicable to the initial ownership of ble to the arbitrability of disputes. © 2021 Marie-Elodie Ancel, Nicolas Binctin, Josef Drexl, Mireille van Eechoud, Jane C Ginsburg, Toshiyuki Kono, Gyooho Lee, Rita Matulionyte, Edouard Treppoz and Dário Moura Vicente Everybody may disseminate this article by electronic means and make it available for download under the terms and conditions of the Digital Peer Publishing Licence (DPPL). A copy of the license text may be obtained at http://nbn-resolving. de/urn:nbn:de:0009-dppl-v3-en8. Recommended citation: Marie-Elodie Ancel, Nicolas Binctin, Josef Drexl et al., Kyoto Guidelines: Applicable Law, 12 (2021) JIPITEC 44 para 1 A. General Rules Short comments 19. Existence, Scope and Transferability (lex loci 1 The Guideline makes “matters concerning the right protectionis) as such” subject to the law of the “State for which the protection is sought” (lex loci protectionis). This The law applicable to determine the existence, approach is in line with the traditional approach validity, registration, duration, transferability, and reflects the idea that intellectual property and scope of an intellectual property right, and rights are the outcome of policy choices of States. all other matters concerning the right as such, “State for which the protection is sought” should is the law of the State for which protection is be distinguished from lex fori and is usually sought. understood in terms of rights which require its registration in each jurisdiction such as patent and See as reference provisions trademark as the State of registration. For other §§ 301, 314 ALI Principles rights, which do not arise from registration, for Arts 3:102, 3:301 CLIP Principles instance copyright, the lex loci protectionis refers Art 305 Transparency Proposal to the law of the State which recognizes the right. Arts 301, 309 Joint Korean-Japanese Principles 1 44 2021 Marie-Elodie Ancel, Nicolas Binctin, Josef Drexl et al. 2 The Guidelines distinguish proprietary aspects of and cultural policies represent policy decisions, but an intellectual property right from its contractual under the regime of TRIPS, commercial or trade arrangements. This paragraph applies the law policies could be a part of them as well. of the State for which protection is sought (lex loci protectionis) to the proprietary aspects, which 4 The language “State for which the protection is typically include existence, validity, duration and sought“ is carefully chosen, especially to distinguish scope. “Existence” of an intellectual property right it from the “State where the protection sought“ in means that the right is recognized as an exclusive Article 5(2) of the Berne Convention, as there is a right in a State. “Registration” as a requirement of scholarly debate if “State where the protection the existence and the validity of certain types of sought” in the Convention would mean the principle intellectual property rights includes its procedural of choice of law. Also, the language of the Berne aspects. The “scope” concerns to what extent the Convention could be interpreted as referring to the protection of an intellectual property right reaches, lex fori. By contrast, “State for which the protection typically, for instance, whether moral right, mere is sought” has also been adopted in Article 8 of the use, exhaustion, or renumeration right is a part of Rome II Regulation. the right, and naturally also covers the limits and exceptions of the protection. “Transferability” of 5 How to identify the “State for which the protection an intellectual property right could be placed in an is sought“? If the right holder of a patent seeks independent provision, since it concerns a dynamic protection of his/her patent in the territory of State aspect of right, while others concern static aspects A, the law of State A is lex loci protectionis. However, if of proprietary right. However, the Guideline clarifies his/her invention is not registered in State A, there its stance to place both aspects in one provision by is no legal basis at the level of substantive patent law stating that “all other matters concerning the right to protect the claimant. In the Card Reader Case1, the as such”. Japanese Supreme Court chose US patent law as the law applicable to an injunction, but then rejected to Extended comments apply it, as extra-territorial application of US-patent law would violate public policy (the territoriality Hypothetical 1 principle) in Japan. The Supreme Court did not use the term lex loci protectionis in its judgment. If this A, resident in State X, holds a patent registered in Guideline would have been applied, Japanese law State Y. A believes that B, a company which was should have been identified aslex loci protectionis, as incorporated and has its headquarters in State X, the right holder wanted to protect his patent in the infringes A’s patent in State Y. A sues B in State X, the territory of Japan. But his patent was not registered place of defendant‘s domicile, for compensation. B in Japan, hence he could not get any legal protection. argues that A’s patent in State Y is invalid. The court Although this result is the same as the judgment of of State X should apply the law of State Y to render a the Japanese Supreme Court, the way to conclusion judgment (as for the jurisdiction of the court in State is different. X, see Guideline 11(2)). 6 For other rights, which do not arise from registration, Hypothetical 2 the lex loci protectionis refers to the law of the State which recognizes the right concerned. In legal A, composer living in State X, signs a contract with practice the claimant should identify for which B, an opera company in State Y, to create a new States he wants to protect his rights, when he production of an opera composed by A. The license formulates his claims. Therefore, lex loci protectionis contract contains a choice of court clause (State X as usually corresponds to the market where the right agreed forum State), but no choice of law clause. On holder seeks protection. the first night, A realizes that in this new production, the ending scene of the opera is differently staged Definitions from his original idea, while the musical part was not changed. A sues B in State X for compensation and 7 The Guidelines distinguish proprietary aspects of injunction restraining B from performing infringing an intellectual property right from contractual acts in State Y. The copyright law of State Y should arrangements. The latter is covered by Guidelines be applied to the question if such a staging would 21 and 22, while this Guideline deals with proprietary infringe A’s copyright. aspects of an intellectual property right. Lex loci protectionis 8 “Existence” of an intellectual property right means that the right is recognized as an exclusive right in a 3 The Guideline reflects the approach that the intellectual property rights are the outcome of 1 Japanese Supreme Court, Hanrei Taimuzu, No. 1107, [2002], policy choices of States. Traditionally, industrial p. 80. 1 45 2021 Kyoto Guidelines: Applicable Law State. The issue of “validity” is a separate issue from ownership. This paragraph applies mutatis the existence. A right recognized as an exclusive mutandis to related rights. right may be challenged by certain stakeholders. Issues such as who could do so, and under what (b) If the underlying policy of the law of the State conditions fall under the issue of the validity. for which protection is sought so requires even “Registration”, as a requirement of the existence and in international situations, the allocation of the validity of certain types of intellectual property rights which cannot be transferred or waived is rights, includes not only substantial requirements, governed by the law of that State. but also procedural aspects as well as appeal procedures in case of refusal. The “scope” concerns See as reference provisions to what extent the protection of an intellectual §§ 311-313 ALI Principles property right reaches. Accordingly, exceptions Arts 3:201, 3:401-402, 3:503 CLIP Principles and limitations of intellectual property rights are Art 305 Transparency Proposal covered by this Guideline. For instance, if and to Art 308 Joint Korean-Japanese Principles what extent exhaustion is recognized; if and under what conditions compulsory license2 of patents is Short comments allowed; if there are general exceptions of copyright protection such as fair use.3 10 For industrial property the Guidelines follow the main territoriality based rule. In case of rights for 9 “Transferability” of an intellectual property right which registration is a constitutive factor, the State should be separated from contractual arrangements. for which protection is sought is the State where Since transferability is an attribute of an intellectual the right is (to be) registered.
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