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Program in Intellectual Property Law

Constructing International Intellectual Property Law: The Role of National Courts

Chicago-Kent College of Law, October 18-19, 2001

  • Revised Dreyfuss/Ginsburg Draft Treaty available!
  • Symposium Related materials
  • Recent Developments

    On October 18-19, 2001, the Chicago-Kent Intellectual Property Program and the Chicago-Kent Law Review will host a symposium on Constructing International Intellectual Property Law: The Role of National Courts. Leading scholars, practitioners and policymakers will participate in discussing an issue of great importance to intellectual property law, international civil litigation, and international law generally: what should be the role of national courts in the adjudication of multinational intellectual property claims and, through that adjudication, in the construction of international intellectual property law?

    Several pending developments have placed this issue squarely at the top of the scholarly and policymaking agenda. The Hague Conference on Private International Law is currently discussing a draft convention on jurisdiction and recognition of judgments (the proposed "Hague Convention"). Many of the draft Hague Convention's proposals are proving extremely controversial, not least those relating to intellectual property. The lack of consensus over how to treat intellectual property claims has prompted some groups to suggest that intellectual property must be dealt with in a separate treaty apart from the main Hague Convention. Against this backdrop, Professors Rochelle Dreyfuss (New York University School of Law) and Jane Ginsburg (Columbia Law School) have been drafting a standalone treaty on jurisdiction and judgments applicable in intellectual property cases. Professors Dreyfuss and Ginsburg will present their proposed treaty (and reporters' notes) at the Symposium as the Eighth Annual Charles Green Lecture.

    To frame the Dreyfuss/Ginsburg presentation, Professor Graeme Dinwoodie (Chicago-Kent College of Law) and Professor Graeme Austin (University of Arizona) will examine the existing (territorial) system of international intellectual property law. The current iteration of the Hague proposals will be discussed by Professor Catherine Kessedjian (Université Panthéon-Assas Paris II), former Deputy Secretary-General Hague Conference on Private International Law; Jeffrey Kovar, Assistant Legal Adviser for Private International Law, U.S. Department of State, and head of the U.S. delegation to the Hague Convention; Shira Perlmutter, Former Consultant to WIPO on Copyright and Electronic Commerce and now Associate General Counsel for Intellectual Property Policy at AOL Time Warner Inc.; Professor Francois Dessemontet, Professor of Law and Director of the Center for Enterprise Law at the University of Lausanne; Jonathan Franklin, Assistant Librarian for Library Services at the University of Washington School of Law; and, Professor Linda Silberman (New York University School of Law), co-reporter on the American Law Institute (ALI) International Jurisdiction and Judgments Project. (The results of the ALI International Jurisdiction and Judgments Projects may be embodied in a federal statute regardless of the fate of the proposed Hague Convention.)

    All of these speakers will comment on both the Hague and Dreyfuss/Ginsburg proposals, and they will be joined in the discussion by several other leading scholars - including Professor Jack Goldsmith (University of Chicago Law School), George Bermann (Columbia Law School) and Michael Van Alstine (University of Cincinnati College of Law) - who will make presentations addressing the broader implications of these proposals. These implications are numerous. What does this story reveal about the institutional dynamics of international lawmaking, and in particular what is the relationship between national and international initiatives? What changes would the Hague proposals and the Dreyfuss/Ginsburg proposal effect in the means by which "international intellectual property lawmaking" might effectively occur? Is the ability to "reterritorialize" the internet through technological measures something that we should actively pursue? The apparently borderless nature of the internet, which precipitated many of the concerns underlying the Hague debate, may need to be re-assessed in light of new technologies that enable the construction of virtual borders. What do the different structures of the Brussels Convention and the proposed Hague Convention suggest about the contribution that private international law can make to globalization; and, what are the transition costs of moving from one legal regime to another (e.g. from the strict territorialism of the existing international intellectual property system to the new systems contemplated by the Hague and Dreyfuss/Ginsburg proposals.)? All of these questions, and many others, will be on our agenda.

    Time has been reserved for audience participation and we look forward to a lively interchange at a moment when our discussions can have an immediate impact on the shape of the system of international intellectual property law (and, more generally, on our system of international litigation).

    The Hague Convention Negotiations

    In June 2001, delegates to a Diplomatic Conference organized by the Hague Conference met to discuss the proposed Hague Convention. The June conference was intended as the first half of a two-part process designed to conclude with the adoption of a convention at a second Diplomatic Conference in early 2002. After two weeks of intensive negotiations in June, participating delegations agreed to convene again in January 2002, and to decide then on the final scope of the project. The concluding part of the Diplomatic Conference will not now occur until late 2002.

    The Position of the United States

    Although the United States was a prime mover in the initial development of the draft Hague Convention in 1993, the rapid emergence of e-commerce in the mid-1990s caused the United States to adopt a more cautious approach as the treaty evolved.

    The Response of the Intellectual Property Communities in the United States

    The application of the proposed Convention to e-commerce has proved extremely controversial. So too have the provisions addressing intellectual property. Although the application of the Brussels Convention - the European convention upon which the draft Hague Convention is in large part based - to intellectual property had been contentious in certain respects, the intellectual property community took some time to realize the full implications of the Hague proposals.

    That has changed in the last year. The Copyright Office and the Patent and the Trademark Office have each solicited comments on the position that the United States should adopt in the Hague negotiations (the PTO is repeating this exercise at present). The State Department has expanded its efforts to listen to the wide range of views being expressed by U.S. stakeholders. And congressional committees have held hearings on the proposed Convention.

    Reaction to the Hague Proposals in the International Intellectual Property Arena

    Standing committees of the World Intellectual Property Organization (WIPO) have been briefed on the treaty, and WIPO convened a two-day forum in Geneva in January 2001 to discuss the private international aspects of intellectual property protection. The TRIPS Council is closely monitoring developments in the Hague negotiations. The European Commission has also scheduled hearings in October 2001 to consider the draft convention.

    The Approach of the Hague Convention to Intellectual Property

    Although this intensified debate has caused the development of firmer positions in recent months, attitudes toward the Hague Convention generally, and its provisions on intellectual property law in particular, vary widely among scholars, industry groups, consumer interests and bar associations. Some oppose the Convention outright. Others support the Convention, but wish to exclude intellectual property litigation from its scope. Still others would reject the Convention unless it includes intellectual property law. Should all forms of intellectual property be dealt with in the same way by the Convention? Again, there are wide differences of opinion.

    Special thanks to those who have supported this symposium:

    Holland & Knight
    Lexis NexisTM
    Chicago-Kent Law Review
    The Charles Green Endowment


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