CP’s multidomain approach harmonizes fractured international IP law.

In the international IP context, two types of fragmentation have been observed and studied. Within the complex web of IP treaties, the last twenty years have seen a continuous trend towards bilateral and (mega-) regional norm-setting, especially in form of IP chapters in comprehensive trade or economic partnership agreements (here generally referred to as FTAs). Among the range of questions this form of fragmentation within the IP system raises, research for example has looked at potentially conflicting obligations some states have agreed vis-à-vis different trading partners,47 as well as the relationship between FTAs and multilateral treaties such as TRIPS.48 Those questions essentially concern the law of treaties,49and hence again benefit from a broader public international law perspective. The main concept of fragmentation however concerns the ‘functional differentiation’ and ‘diversification’ of international law into a wide range of legal orders or rule-systems that emanate from like-minded actors co-ordinating across borders in essentially all areas of human activity.50 Where such co-ordination has led to state-sanctioned norm-setting, public international law questions of overlapping and otherwise interacting rule systems arise.51 The variety of interactions between IP and other rule systems (already hinted at above) provide a fertile ground for analysis, for example on relations between rules addressing human rights, investment, environmental protection, biological diversity, cultural heritage, trade, and IP.52 Since the general legal principles like lex specialis and/or lex posterior (commonly advocated as conflict resolution tools) tend to reach their conceptual limits when applied to settings where for example no one rule system can reasonably claim to be the most specific one, alternative approaches beyond public international law need to be developed.

Scholars have proposed a range of methods and conceptual frameworks to better understand and analyse such interfaces.53 For the complex interrelations between, for example, IP, trade, human rights, and investment in the context of tobacco packaging measures, conflict of laws methodologies offer an alternative approach which may be of particular interest for future norm-setting in this area.54 De lege lata, adjudicators might equally draw on PIL tools such as categorization, depecage, comity, ordre public, and mandatory norms—at least as conceptual guidance when considering options to take account of rules that do not form part of their own ‘lex fori’. That is not to say that these multifaceted interfaces can only be properly tackled by resorting to PIL methods—the idea is rather that one should be generally open to alternative frameworks in this context. This is particularly true when looking at transnational IP norms set by private actors, such as content (rather than actual copyright) protection through automated enforcement tools employed by platforms such as YouTube (owned by Google) or Instagram (part of Facebook). Relying solely on a traditional public international law approach here would disqualify private rules as relevant law—and so effectively neglect the global reach of some of these private ordering regimes (whose impact may surpass that of minimum standards set in public international law treaties on IP). On the other hand, simply scrutinizing these regimes from a traditional private (international) law perspective places undue emphasis on (contractual) freedoms that appear unwarranted in light of the impact these regimes have on third parties, in particular internet users.