This Short article has been written by Anavi Nagpal and co- authored by Ashish Singh. Anavi and Ashish are law students at at Northcap University.
Abstract
In a rapidly digital globalized economy continuously eroding the traditional boundaries of commerce, the principle of territoriality in intellectual property (IP) law is acquiring newfound significance and presenting increasingly complex legal challenges. This article explores the area of lawless law – that is, of cross-country litigation in intellectual property – through the lens of the Indian legal system. Growing tensions between domestic sovereign national statutes and modern online commerce, which is essentially borderless, challenge existing territorial frameworks and regulations, as many infringements occur instantaneously across countries. This article examines India’s changing statutory and constitutional framework and the transformative legal reasoning of its courts in some complex cross-border digital infringement cases, including the use of the “effects doctrine.” The experiences of these courts in dealing with cross-border online forums are significant because they provide insight into approaches for digital intellectual property regimes.
The article outlines a changing landscape in jurisdictional conflict of laws and enforcement options through carefully analyzing seminal case law and existing international cooperation agreements. It identifies the persistent and daunting challenges to effective resolution, including considerations of the practical difficulties of enforcing a foreign judgment in a cross-border context, and complicated conflicts of law analysis in cases applying substantive law. The article addresses a new frontier of emerging judicial and technology-based solutions, i.e., “dynamic injunctions” to counteract the challenge of multi-headed infringing websites, and blockchain’s significance in establishing an immutable IP registry. The article concludes with a substantive argument in favor of a future-focused, multifaceted approach that promotes selective legislative measures (including ratifying key WIPO treaties), capacity-building (i.e., judicial education and IP benches), and a more proactive approach to international fora as well as an influential role for India in international negotiations. The article articulates that a holistic approach is necessary to provide a predictable, effective, and fair legal environment to protect Indian innovative work in the global architecture, while also providing certainty for foreign right holders in India, ultimately signaling India’s importance in knowledge economies.
