LLAW6132 Chap.5 Territoriality, Jurisdiction and Extraterritorial Reach
Territoriality, Jurisdiction and Extraterritorial Reach
The governing rule
Territoriality means that a state's laws have force only within its boundaries, and that one sovereign respects the territorial competence of others. For IP it produces lex loci protectionis: the law of the country where protection is claimed governs whether a right exists and is infringed.
Berne Article 5.2 states it for copyright, and the practical consequence is that protection must be established country by country, even for rights that need no registration.
A method for conduct that crosses borders
Parallel imports, transnational broadcasting and internet transmission begin in one country and end in another.
The general answer is the law of the place of the wrong, and the lecture turns it into three steps: categorise the claim, localise the protection and the infringing acts by choosing a connecting factor, and apply the national law so identified.
Candidates for the connecting factor include the place a copy was initiated, the place it was received, and the place most closely connected with the parties or transaction.
When national law reaches abroad
Extraterritoriality comes in two directions: outbound regulation of acts abroad that harm a domestic holder's interests, and inbound regulation of foreign acts with substantial effects at home.
US patent and copyright cases traditionally refused to reach abroad, while the substantial effect test in Steele v. Bulova carried trade mark law further. Alexander Peukert's reading frames the tension: territorialism under-protects right holders, extraterritorialism over-regulates the flow of information.
Long-arm jurisdiction
Jurisdiction is a separate question.
The lecture traces US long-arm jurisdiction to International Shoe and its minimum contact and effect principles, and sets out China's 2024 Civil Procedure Law amendments, which widen jurisdiction over foreign defendants, give Chinese courts exclusive jurisdiction over the validity of Chinese IP rights, and address parallel litigation abroad.
What this chapter covers
- 01
Three precepts of territoriality
- 02
Lex loci protectionis and Berne Article 5.2
- 03
The law of the place of the wrong
- 04
Categorise, localise and apply
- 05
Points of attachment under Berne, Rome, PRC and US law
- 06
Outbound and inbound extraterritorial regulation
- 07
Long-arm jurisdiction in the United States and China
Worked example · free
Localise an upload that is viewed abroad
- 2Categorise the claim.
- 4Identify the candidate connecting factors and choose between them.
- 3State the law applied and any reach beyond it.
Key terms
- Lex Loci Delicti
- The rule that the law of the place where an infringement takes place governs the infringing act.
- Outbound Regulation
- A national IP law reaching acts that occur wholly or partly abroad and affect a domestic holder's overseas interests.
- Inbound Regulation
- A national IP law reaching foreign conduct that has a substantial effect within the border, such as parallel imports.
- Long-arm Jurisdiction
- A court's power to hear claims against foreign defendants because of their activities or connections with the forum.
- Effect Doctrine
- The principle that a state may apply its law to conduct abroad that has substantial effects within its borders.
Territoriality, Jurisdiction and Extraterritorial Reach FAQ
Does registering a trade mark at home protect it in other countries?
No. Under territoriality the right exists only where it is granted, so protection abroad must be established in each country, by registration there or through a system that files into national offices. The lecture adds that the same rule governs copyright, even though no registration is involved.
What did China change in its 2024 Civil Procedure Law?
It widened jurisdiction over foreign defendants to disputes with any connection to China or a written agreement, made the validity of IP rights granted in China a matter for Chinese courts exclusively, and set rules for parallel proceedings abroad, including a possible stay where a foreign court took the case first.
Why do US courts treat trade marks differently from patents abroad?
The lecture's cases show patent and copyright law traditionally confined to acts in the United States, as in Brown v. Duchesne and Subafilms, while Steele v. Bulova applied trade mark law abroad under a substantial effect test. Confusion of domestic consumers is itself an effect at home.
Exam move
Practise the three steps on one scenario from each of the lecture's categories, a parallel import, a cross-border broadcast and an online upload. Write the candidate connecting factors for each before choosing, and note which party each factor favours.
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