Intellectual property in private international law: issues of conflict of laws regulation, unification and harmonization

Introduction. Intellectual property has become one of the key assets of the global economy in the 21st century. Its cross-border nature, due to the international division of labor, digitalization and widespread use of IP objects on the Internet, comes into fundamental conflict with the territorial principle that historically underlies its legal protection, which creates difficulties in conflict-of-laws regulation. Conflict of laws issues in private international law are resolved both at the level of national conflict of laws regulation and at the international level. A special place is given to such key processes as the unification and harmonization of law.

Purpose. The article provides a comprehensive analysis of the current state of conflict-of-laws regulation of relations in the field of intellectual property, as well as the role of international unification and harmonization in overcoming legal uncertainty in the context of the growing cross-border exchange of intellectual property rights (IP).

Methods. The work uses general and special methods of scientific knowledge: the method of systematic and logical analysis, formal legal, historical, legal and comparative legal methods.

Results. In the digital age, the territorial principle faces a special problem: the use of an IP object on the Internet is by its nature cross-border and ubiquitous. A violation initiated in one jurisdiction can instantly cause harm in dozens of others. This raises difficult issues of localization of the violation and determination of the applicable law. There are three main groups of IP relations that need conflict-of-laws regulation: intellectual statute (recognition, effect, scope of IP rights); contractual obligations from IP rights; non-contractual (tort) obligations related to the violation of IP rights. National legislation demonstrates, as a rule, the fragmentation of conflict-of-laws regulation; attempts at international unification face insoluble contradictions in the approaches of States to the conflict-of-laws issue in the field of IP. The processes of international harmonization are becoming a tool for overcoming these contradictions.

Conclusions. Conflict-of-laws regulation of relations in the field of intellectual property is in a state of dynamic development due to the contradiction between the territorial nature of rights and the extraterritorial nature of their use. International harmonization has become a significant vector in the development of private international law in the field of intellectual property. The incompleteness of interstate unification initiatives was offset by the productive work of the expert community on the creation of private law codifications. They have formed a full-fledged regulatory model offering specialized approaches to all key categories of private law relations in the field of IP. National legislation, including Russian legislation, demonstrates a mixed approach, combining substantive legal norms with fragmented conflict-of-laws regulation; in the future, we can expect convergence with the approaches proposed in the harmonization acts.

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