Wednesday, 1 August 2012

Book review: Intellectual Property and Private International Law

I have not been as diligent about writing book reviews as I should have been, so I have a bit of catching up to do. I'll begin with the second edition of Intellectual Property and Private International Law, by the highly distinguished duo James Fawcett and Paul Torremans, published by OUP last year but up to date to June 2010, and offered by them for the princely sum of £195. (Why, I wonder, do we use "princely" to mean "substantial" in that context? Are princes assumed to be rich, or merely profligate? Is a King's ransom much greater, and therefore outside the prince's budget?) The first edition, which was the only treatment of this subject (the second edition retains this distinction), dated from 1998, and since then there have been several important changes in the law - the Brussels Convention has given way to the Brussels I Regulation, the Rules of the Supreme Court to the Civil Procedure Rules, and the Rome Convention on Applicable Law to the Rome I Regulation. Private international law has become, more and more, a matter of European Union law. The Court of Justice has explored the territory in the Roche and GAT cases (and more recently in DHL v Chronopost), and domestically the Court of Appeal has considered it in the Lucasfilm case (which the authors describe as "disappointing"). The Supreme Court judgment, of course, came too late to be covered, which is a shame because it presumably overcomes the authors' disappointment.

Back when I first studied intellectual property law - the Patents Act 1977 was not yet fully in force, the Trade Marks Act dated from 1938, and the Copyright Act from the year of my birth, and the Registered Designs Act 1949 was still in its first iteration - its interface with international law was vanishingly small. National rights were enforced in national courts, and even the European Community kept a respectful distance from the area. There were international conventions in the field, but they were concerned with the acquisition and content of intellectual property rights, not with their enforcement.

Now, since the first edition of this book, the Internet has introduced us to the notion of "ubiquitous infringement". Other factors have also combined to give intellectual property law a substantial international dimension, including the activities of parallel traders - indeed, the process of globalisation has opened up all kinds of cans of worms that had previously remained safely sealed, or even buried out of sight.

The law is being brought up to date - in so far as the law ever gets up to date with technology: Brussels I is being reformed, with intellectual property high on the agenda, and (at the time of writing of the book - this part has certainly been overtaken by events) there was much talk of unitary patent protection and the UPLS. The international exploitation of intellectual property rights is responsible for a bunch of new problems, because legislation is sparse and international treaties have (the authors say) failed unspectacularly.  There have been scholarly initiatives such as the ALI principles in the US and the CLIP principles in the EU, which influence the suggestions for reform put forward by the authors.

The book - a staggering 1,056 pages (I use the word advisedly - not only does it describe what I think about the authors' achievement but it also serves to characterise the experience of carrying a copy) - falls into three sections, the last of only one chapter. These cover jurisdiction, applicable law and recognition and enforcement of foreign judgments. Further details of what's in each section appear on the publisher's website (follow the link at the top of this posting). It doesn't, as intellectual property textbooks once used to do far too often, lead the reader by the hand through the well-known gardens of basic intellectual property law before heading off into the undergrowth of private international law, and thank goodness for that: it is too easy, too tempting, to bulk up a book by including egg-sucking instructions that one's grandmother would find redundant. It's all good, solid, meaty stuff and essential reference (the implication that it is not a book to sit and read through from cover to cover is quite intentional) for the practitioner interested in this little area, and who among IP practitioners is not interested in it these days?

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