The Role of the Territoriality Principle in Modern Intellectual Property Regimes: Institutional Lessons from Japan

Abstract

The principle of territoriality of IP rights 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 principle was at stake. Based on this analysis, it is argued that the territoriality principle should not be phrased as “either-or” question; instead it is submitted that one should view territoriality in a broader institutional 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 extend to possible extra-territorial situations).