9.2 Summary. Intellectual property in the conflict of laws. The hidden conflict-of-law rule in the principle of national treatment

1258. Current practice and confusion. The protection of intellectual property has traditionally been governed by the lex loci protectionis, i.e. the law of the country for which protection is claimed. If, for example, patent protection is claimed for the Netherlands, Dutch law will apply. Today, the predominance of the lex loci protectionis conflict-of-law rule is, however, no longer a matter of course. Critics argue that it sits uneasily with the age of globalisation and the internet. Some authors have suggested allowing some exceptions to the lex loci protectionis rule, for example party autonomy. There have also been proposals to narrow the scope of the lex loci protectionis rule by splitting off certain aspects of the protection and subjecting these aspects to other conflict-of-law rules. Such proposals have gained some headway in case law and in legislation. They are, however, controversial. Should one challenge the hegemony of the traditional lex loci protectionis rule? This inevitably raises the question what is the law currently in force in this field. Current opinions on this vary widely.

1259. Berne Convention and Paris Convention. The controversy mainly revolves around the question whether the two most important intellectual property treaties, i.e. the Berne Convention of 1886 and the Paris Convention of 1883, contain a conflict-of-law rule. These treaties cover virtually all the inhabited territories of the globe, and, within their scope, they prevail over all other treaties. Thus the question of whether the Berne Convention and the Paris Convention contain a conflict-of-law rule is of paramount importance: if they do, such a rule would be applicable almost all over the world.

1260. Principle of national treatment. Ever since their inception both the Berne Convention and the Paris Convention have been based on the so-called principle of national treatment. In short this principle is such that foreigners (foreign authors, inventors, etc.) shall enjoy the same rights which national law grants to its nationals. What exactly does this mean? Evidently, the principle of national treatment includes in any event a (private-law) aliens-law rule, namely a ban on discrimination. The question is, however, whether, aside from a ban on discrimination, this principle also includes a conflict-of-law rule. That question is currently seen as "highly controversial" and "very complicated". And here we encounter something curious: the 19th-century authors of the Berne Convention and Paris Convention did not consider this question complicated or controversial at all: on the contrary, to them it was obvious that the principle of national treatment contains a conflict-of-law rule. They regarded it as so self-evident that they gave little attention to it. Hence the enigma of international intellectual property law: does the principle of national treatment contain a conflict-of-law rule? And if so, why do we no longer understand this rule today? These are the two central questions of this study.

1261. New. This study will reveal that the principle of national treatment in these treaties does indeed contain a conflict-of-law rule. The explanation given for this is, as far as I know, new. It provides a comprehensive and consistent interpretation of the respective provisions in the treaties. More than that, it explains why we no longer understand this conflict-of-law rule today; it also explains the unilateral conflict-of-law rules in many long-existing national intellectual property laws, such as section 47 of the Dutch Copyright Act; in addition it explains the ground for exclusive jurisdiction and the confusion about it, in particular in industrial property law.

1262. Explanation. fi la recherche de la règle perdue one has to go back in time: the principle of national treatment may only be understood by grasping its genesis, which is long and complicated, starting with the birth of the principle of national treatment in intellectual property law in the first half of the 19th century. In those days the conflict of laws was based on the doctrine of statutes, which resolved the applicable law question by demarcating the scope of a country's own law. Within the parameters of this doctrine the principle of national treatment was developed to resolve a situation that gradually came to be seen as problematic, i.e. the state of lawlessness in which the foreign element (a foreign work, a foreign author, etc.) generally found itself at the time. This state of lawlessness was usually the result of a certain doctrine of statutes' demarcation of the scope of national law, causing the absence of an applicable law for the foreign element. Thus this state of lawlessness has two aspects: a conflict-of-law aspect (i.e. a legal vacuum) and an alienslaw aspect (i.e. discrimination). The principle of national treatment abolished this situation by taking the foreign element, as if it were of national origin, under the wing of national law - by `treating it nationally'. Thus this principle comprises two intricately linked rules: a conflict-of-law rule and an aliens-law rule: firstly, it provides (on the basis of the principle of formal territoriality generally applicable at the time) an applicable law in lieu of the former legal vacuum; and, secondly, it replaces the former discrimination with non-discrimination.

1263. Leading principle in Creaties. In the course of the 19ffi century the principle of national treatment gradually became the leading principle of international intellectual property law. It was a solution that had proved to be sound and effective, and, as such, was incorporated into the Paris Convention and the Berne Convention. The authors of both treaties thus remained true to the tradition developed in international intellectual property law and rooted in the doctrine of statutes. The shift of paradigms in the conflict of laws that occurred in the second half of the 19th century — i.e. the doctrine of statutes being ousted by the doctrine of Von Savigny — passed by intellectual property law at the time. The authors of the Paris and Berne Conventions deliberately adhered to the conflict-of-law solution of the principle of national treatment. Thus the Berne Convention and the Paris Convention pass on to us, in the 21st century, an early 19th-century conflictof-law rule based on the doctrine of statutes. Which is an exceptional situation.

1264. Current incomprehension. Also exceptional is that we no longer understand this conflict-of-law rule today. Essentially, the erosion of our understanding is due to the fact that we fail to recognise the legal vacuum in the state of lawlessness — a fatal error: by not recognising this vacuum, we fail to understand the conflict-oflaw rule in the principle of national treatment, as this rule is the answer to the legal vacuum. The failure to recognise the legal vacuum is the result of a gradual and unnoticed shift of the conflict-of-law view of intellectual property law. The legal vacuum and the principle of national treatment are phenomena from an age in which the conflict of laws was governed by the doctrine of statutes, while our present mode of thinking about the conflict of laws is governed by the doctrine of Von Savigny. His approach does not concern itself with demarcating the scope of a country's own law, as was the doctrine of statutes, but with tracing the (territory of the) law to which the legal relationship belongs according to its nature ("seiner eigenthümlichen Natur nach angehört oder unterwurfen ist (worin dasselbe seinen Sitz hat)") — hence, an entirely different system of the conflict of laws. The Savigny system does not allow us to recognise the legal vacuum in the state of lawlessness. This is due, firstly, to the hidden premise in the Savigny system, which is that there is always an applicable law — in Von Savigny's world a legal vacuum is simply inconceivable. And, secondly, Von Savigny makes a strict separation between the conflict of laws and aliens law, as a result of which we interpret the doctrine of statutes' demarcation of the scope of national law to national elements as a matter of aliens law rather than one of the conflict of laws. Thus, we fail to recognise the legal vacuum in the state of lawlessness. Moreover, we have become alienated from the principle of formal territoriality, as a result of which many 19th-century sources are now incomprehensible to us.

1265. Thus Von Savigny's mode of thinking is an impediment to us in more than one respect. We view a problem with its roots in the doctrine of statutes (the state of lawlessness) and the corresponding solution offered by the doctrine of statutes (the principle of national treatment) through Von Savigny's eyes, which obscures the conflict-of-law rule embedded in the principle of national treatment. Meanwhile, we are not even aware that we see these legal concepts through Von Savigny's eyes and thus restrict our field of vision, a fact that puts this conflict-oflaw rule beyond our reach.

1266. Broader perspective. This study provides, en passant, several new insights into the conflict of laws, aliens law, and the relationship between these two fields of law. An important classification structure (the `three-stage structure') has emerged that allows us to identify three consecutive stages for international matters, i.e. the legal capacity stage, the conflict-of-law stage and the substantivelaw stage. Aliens law, it transpires, is not an autonomous stage, but may be relevant in any of the three stages. In addition, two aspects of Von Savigny's conflict-of-law system have been brought to light that, to date, seem to have been neglected, i.e. the impossibility of a legal vacuum and Von Savigny's separation of the conflict of laws from aliens law. These aspects have also coloured our view of the history of the conflict of laws. This realisation enables us to develop a new view of its history, a view not impeded by Von Savigny's ` Vorversteindnis'. This new view highlights the fact that the conflict of laws dates back to ancient times rather than the Middle Ages and that, until Von Savigny, the conflict of laws was intertwined with aliens law.

1267. Modernisation. In the field of intellectual property law, the Berne Convention and the Paris Convention leave us, as stated earlier, with a 19th-century conflict-of-law rule based on the doctrine of statutes — and this conflict-of-law rule continues to be the law in force. It embraces the (completion of the) principle of formal territoriality, which principle means that the scope of application of intellectual property law is demarcated to a country's own territory (material territoriality) and that a court will only apply its own intellectual property law (formal territoriality). The latter component clashes with current legal opinion and practice, and may, within the margins of current law, be excluded on certain conditions based on a concordant, common and consistent subsequent practice in the application of the Berne Convention and the Paris Convention, which practice has established international agreement regarding this interpretation of these treaties. This leaves a conflict-of-law rule based on material territoriality. Such rule may be converted into a modern, Savigny conflict-of-law rule: the lex loci protectionis rule. This is an exclusive conflict-of-law rule covering the protection of intellectual property in its entirety. This process allows for a reformulation of the key provisions of the Berne Convention and Paris Convention in contemporary language and mode of thinking — and this study seeks to do so.

1268. Desirable law. The focus of this study is almost entirely on the analysis of existing law. It does draw some attention, however, to the question of what law is desirable. In my opinion the lex loci protectionis rule continues to be the most appropriate conflict-of-law rule, even in the current age of globalisation and the internet. That does not mean to say that the application of this rule makes the international intellectual property landscape an ideal one. The lex loci protectionis rule has its weak points. These problems may, however, be mitigated to a large extent; and they will eventually have to be resolved by unifying or harmonising intellectual property law, hence by intellectual property itself rather than by the conflict of laws. The most the latter can do is develop the best possible conflictof-law rule, which is in my opinion the lex loci protectionis rule. I also take the view that both the material-reciprocity-exceptions and the concept of the 'country of origin' in the Berne Convention should be abolished. It would make the convention clear-cut and transparent and moreover simplify its application. All this is specified in concrete proposals to reform existing law, such as (article 8 of) the Rome II Regulation and, of course, the Berne Convention itself. Lest the book that the 19th-century treaty authors began to write be yet closed.1