Transnational regulation of intellectual property through cooperation

Project management: Univ.-Prof. Dr. Alexander Peukert

The basic problem with the international intellectual property system has always been that the rights of inventors, authors, etc. are territorially restricted. There is no world patent or world copyright, but at best a bundle of individual national rights. Communication and business, on the other hand, do not stop at national borders. This discrepancy between national regulation and transnational exchange makes it difficult for rights holders to enforce their rights in practice.

The project examined the legality and legitimacy of various forms of cooperation from a legal perspective, with which private and public actors attempt to mitigate or even overcome the disadvantages of the regulatory patchwork. Three forms of cooperation can be distinguished:
Purely private cooperation between rights holders in the form of contractual networks is intended to enable the transnational use of knowledge in view of a large number of rights (patent pools, collecting societies, open source, Wikipedia).

Cooperation between the judiciary and the executive: As the legislature is largely absent as an actor of cooperation, a tendency towards increased cooperation can be observed among other public authorities. For example, the courts take into account relevant foreign decisions (e.g. on the protectability of a certain invention) and thereby harmonize legal practice even without a basis in international or European law; direct cooperation between different courts in dealing with multinational parallel proceedings is already practiced in some areas (insolvency and family law) and is being discussed for intellectual property. Patent offices also cooperate and exchange information in order to be able to process the flood of patent applications and offer fast-track granting procedures.

Cooperation between public authorities and private stakeholders: Finally, there is increasing cooperation between public authorities and private stakeholders. For example, the EU Commission brokered agreements between publishers, libraries and collecting societies on the digitization and making available of out-of-print works and between internet platforms such as eBay and rights holders on the principles of prosecuting copyright and trademark infringements. The European Observatory on Counterfeiting and Piracy aims to close regulatory gaps by offering rightholders the opportunity to exchange information and develop best practice guidelines for law enforcement.

Several dissertations supervised by Alexander Peukert, all of which have been completed, deal with such cooperation phenomena. Anja Becker’s thesis, which was awarded the Baker & McKenzie Prize of the Faculty of Law in 2015, examines how parallel IP disputes are coordinated before courts in different countries and whether active cooperation between courts can be legal and legitimate. Dominik König tests the efficiency of traditional contract law in the construction of legally stable, heterarchical open source contract networks. In his work, Michael A. Kümmel shows how large content platforms on the internet (YouTube, Facebook) deal with copyright and trademark infringements and implement de facto uniform standards worldwide, although the applicable rights diverge. Nora Luisa Hesse, who held a project position from 2013-2016, explains and criticizes forms of extensive cooperation between customs authorities and private rights holders in the seizure of so-called pirated goods at the EU’s external borders in her dissertation, which was submitted in 2017.

The insights gained from this research were incorporated into a fundamental essay by Alexander Peukert on the structures, actors and purposes of the unification of intellectual property law, published in the Rabels Zeitschrift in 2017. In this article, Peukert discusses not only classic international treaties as formal cooperation between states, but also phenomena of legal unification without state codification, in particular in the form of private regulation through contracts (e.g. open source) and technology (e.g. regulation of internet platforms) and administrative cooperation between patent offices.

Taken as a whole, the legal research results presented offer valuable illustrative material for the development of transnational commercial law in the shadow of state law.

The most important publications in this project:

Peukert, Alexander: “Vereinheitlichung des Immaterialgüterrechts: Strukturen, Akteure, Zwecke”, in: Rabels Zeitschrift für ausländisches und internationales Privatrecht81(1), 2017, pp. 158-193.

Hesse, Nora Luisa: Das EU-Grenzbeschlagnahmeverfahren in Deutschland und seine Vereinbarkeit mit dem TRIPS-Abkommen, Dissertation, Frankfurt am Main (Erstgutachten erstattet am 21. März 2017).

Kümmel, Michael Andreas: Die Implementierung der Haftung von Host-Providern für Immaterialgüterrechtsverletzungen, dissertation, Frankfurt am Main, 2016.

Becker, Anja Andrea: Procedural coordination in transnational intellectual property disputes, Berlin: Duncker & Hublot, 2016.

König, Dominik: Das einfache, unentgeltliche Nutzungsrecht für jedermann, Göttingen: Vandenhoeck & Ruprecht unipress, 2016.

people in this project:

Project management / contact person

Peukert, Alexander, Univ.-Prof. Dr.

Project staff

Hesse, Nora Louisa, Dr. iur.