Territoriality Principle Undermines Uniform International IP Treaties

Historically, IP law is designed to address the needs of a country within its territorial boundaries, and thus, IPRs are domestic in nature. The territoriality principle requires laws to be created and applied within the national borders of a country. The underlying rationale of the principle is based on the premise that intellectual property is an expression of sovereign will that is based on a “country’s economy and social fabric … . the rights and obligations are matters of social policy to be determined by the proper legislative and executive processes”.Footnote13 The territoriality principle subscribed to international IP agreements results in a significant difference in national IP law among countries,Footnote14 resulting in a “universal, systemic self-limitation of substantial [national] IP law”.Footnote15 Therefore, the territoriality principle is embedded in the international IP framework to preserve sovereign authority and allow states to enact laws that match their own policy prerogatives.Footnote16 In the words of Vivant “IP must be thought of as a global tool where the principle of territoriality remains dominant”,Footnote17 and the territorial basis for IP rights is exclusive.Footnote18 Therefore, “copying or adapting” other countries’ IP laws into a national regime may not always be as productive as it would be in those countries. Generally, countries formulate domestic IP laws based on their socio-economic status. For instance, African and Asian countries are rich in traditional knowledge and biodiversity. To protect their traditional cultural expressions from unauthorised use by third parties who might want to copy or exploit these, they adopt measures through existing forms of IPRs or enact “sui generis” laws. For example, Kyrgyzstan and Azerbaijan have sui generis protections for traditional knowledge and folklore.Footnote19 However, the United States does not protect its traditional knowledge through “sui generis laws”,Footnote20 perhaps because it contributes less to the national economy. Similarly, the US and European Union have employed sui generis protections for biotechnology, since biotechnology-related inventions would not have been developed without such protections.Footnote21 These protections may not exist in other countries, mainly because they may not have felt the need. Thus, the choices that a country makes to enact IP laws are based on social, political, cultural and market values.