Territoriality, Berne/Paris Conventions, TRIPS Govern International IP

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Summary

• The Berne Convention emphasizes that copyright protection in each country stands independently, unaffected by the protection granted elsewhere.
• The Paris Convention and Patent Cooperation Treaty recognize that patents are independent in each country, requiring separate applications for global protection.
• The TRIPS Agreement establishes minimum international standards for IP protection while allowing member states flexibility to interpret and implement these standards.
• Territorial boundaries for IP rights are crucial for accommodating diverse national policies, maintaining sovereignty, ensuring dispute resolution, and supporting cooperation.

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The principle of territoriality stands as one of the most fundamental yet often misunderstood cornerstones of international intellectual property (IP) law. At its core, territoriality establishes that IP rights exist and are enforceable only within the national borders of the jurisdiction (usually a state) that grants those rights. This principle has shaped the architecture of the global IP system for well over a century. Despite the increasingly globalized nature of commerce and technology, territoriality remains essential to maintaining the delicate balance between protection and access, between innovation incentives and national sovereignty, and between international harmonization and domestic policy flexibility.

Though the principle applies with equal force to trademarks and designs, this article focuses on the importance and role of territoriality in copyright and patent law, examining its historical foundations in major international treaties, its practical implications for jurisdiction and enforcement, and its continuing relevance in contemporary IP governance. It demonstrates that, far from being an outdated relic of a bygone era, territoriality serves vital functions in preserving national sovereignty, ensuring predictability in international commerce, and protecting the policy space that enables countries to tailor their IP systems to local economic, social, and technological circumstances.

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Origins and Architecture of Territorial IP Rights

When the architects of the international IP system began their work in the late 19th century, they faced a fundamental choice. The first option was to pursue the creation of global rights such as unified patents, copyrights, trademarks, and design rights that would extend across all participating nations. Such a system might have established mechanisms for countries to share roles in assessing validity, infringement, damages, and other aspects of these global rights. The second option was to insist that all IP rights remain inherently territorial, with each jurisdiction maintaining independent authority over rights granted within its borders.

The international community deliberately chose the latter approach and enshrined it in international treaties. As a result, although some observers may consider global IP rights desirable from an efficiency standpoint, they simply do not exist. There is no such thing as a global patent, a worldwide copyright, or an international trademark that automatically provides protection in all countries. Instead, the international IP framework comprises a mosaic of autonomous national or regional rights, each governed by its own legal system and enforceable within specific territorial boundaries.

This fundamental architectural choice reflects deep-seated principles of international law, particularly the concept of national sovereignty. The decision to vest IP protection within national systems acknowledges that different countries have varying economic development levels, technological capabilities, cultural values, and policy priorities. By maintaining territorial boundaries for IP rights, the system permits each nation to calibrate its IP laws to serve its particular interests while still participating in a framework of minimum international standards.

While not always explicitly stated, the principle of territoriality is deeply embedded in international IP treaties. It serves as the linchpin that gives these agreements coherence and purpose. This is significant because the Vienna Convention on the Law of Treaties emphasizes the importance of considering a treaty’s “object and purpose” in its interpretation. Recognizing territoriality as a core element of these treaties’ object and purpose provides a strong foundation for understanding their application.

Territoriality in Copyright Law: The Berne Convention Framework

The most important international instrument in copyright law is the Berne Convention for the Protection of Literary and Artistic Works. Its original text dates to 1886, though the current version was signed in Paris in 1971. As of April 2026, 182 countries were party to the Berne Convention. These countries form what is known as the “Berne Union.”

Dr. Eugen Ulmer, a highly respected and influential European IP scholar, wrote that the Berne Convention is based on the principle of territoriality. In their leading treatise on the Berne Convention, Professors Ricketson and Ginsburg open their foreword with these definitive words: “Copyrights are territorial: they are rights conferred by the laws of nation states which have effect within their national territories.”

This territorial nature of copyright manifests in a specific way. When an author in a Berne Union member country creates an original work, they do not receive a single unified copyright. Instead, they obtain a bundle of 182 national rights, each governed by its own legal system. These national rights are independent, separately tradable, and subject to local laws regarding duration, limitations and exceptions, and enforcement mechanisms. Consequently, the scope and enforceability of the same work can vary substantially from one jurisdiction to another.

A major treatise on international copyright law defines the “territoriality principle” as holding “that a state has no competence to prescribe legal rules to govern activities that occur outside its national borders.” This treatise explains the two primary bases for the principle: first, national sovereignty; and second, predictability of international commerce “by securing reasonable investment expectations.”

The Berne Convention reinforces this principle explicitly, stating: “The enjoyment and the exercise of these rights shall not be subject to any formality; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work.” This provision emphasizes that copyright protection in each country stands independently, unaffected by the protection granted (or not granted) elsewhere.

Leading U.S. scholars consistently recognize territoriality as foundational to copyright law. Professor Graeme Dinwoodie refers to the “basic principle of territoriality” in IP law. Timothy Holbrook, another senior scholar in the field, noted that “[f]undamental to intellectual property (IP) rights globally is that they are national rights.” This international scholarly consensus underscores that territoriality is not merely a technical doctrine but a fundamental structural principle of copyright law.

Territoriality in Patent Law: The Paris Convention and Patent Cooperation Treaty

The principle of territoriality applies to the same degree to patent law—perhaps even more so because, unlike copyright rights, patents must be granted by individual patent offices and are subject to review and possible invalidation only by courts in that jurisdiction. The Paris Convention for the Protection of Industrial Property, first adopted in 1883, establishes the framework for international patent cooperation while preserving the territorial nature of patent rights. The Paris Convention makes this explicit:

(1) Patents applied for in the various countries of the Union by nationals of countries of the Union shall be independent of patents obtained for the same invention in other countries, whether members of the Union or not.

(2) The foregoing provision is to be understood in an unrestricted sense, in particular, in the sense that patents applied for during the period of priority are independent, both as regards the grounds for nullity and forfeiture, and as regards their normal duration.
This provision unequivocally establishes the independence of national patent rights, even when they relate to the same invention. A patent granted in one country has no legal effect in another country; it exists as a separate and distinct legal asset subject to the laws of the granting state. The Paris Convention also expressly reserves the “provisions of the laws of each of the countries of the Union relating to judicial and administrative procedure and to jurisdiction.”

Various international systems have been developed to streamline this process across jurisdictions, most notably the Patent Cooperation Treaty (PCT), which facilitates filing in multiple countries through a single international application. However, these procedural instruments do not confer unitary rights. Instead, they provide access to national or regional systems that ultimately issue separate, territorially bound patent rights. Under the PCT, for example, the international application culminates in a “national phase” during which the applicant must secure protection in each jurisdiction of interest.

The implications of patent territoriality are profound. Obtaining a patent in one country does not automatically confer patent rights in any other country—unless that country decides to recognize foreign patents. An inventor seeking global protection must file separate applications in each jurisdiction where protection is desired (or use regional systems like the European Patent Convention (EPC) where available). Each patent office applies its own substantive law to determine whether a patent should be granted, and each issued patent is subject to the validity standards, scope interpretations, and enforcement mechanisms of its respective jurisdiction.

The TRIPS Agreement: Minimum Standards with Territorial Flexibility

Most of the substantive provisions of both the Berne and Paris Conventions were incorporated into the World Trade Organization’s (WTO’s) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) in 1994. A WTO panel concluded that negotiators did not simply incorporate “the literal wording of the individual articles” of Berne but instead “the intention was to embody the overall Berne acquis.” This means that TRIPS incorporates not just the Berne and Paris texts but also the broader body of principles and interpretations that have developed around them, including the principle of territoriality.

The TRIPS Agreement represents a significant milestone in international IP law by establishing minimum standards that all member states must meet. However, it deliberately preserves substantial national discretion, reflecting the continued importance of territorial variation in IP protection. This balance between harmonization and flexibility manifests in several ways.

First, while the TRIPS Agreement obliges members to recognize patents for inventions that are new, involve an inventive step, and are capable of industrial application, it does not define these terms. Countries may interpret them according to local jurisprudence and innovation policy. The United States, for instance, uses “novelty,” “nonobviousness,” and “utility,” which TRIPS indicates “may be deemed” synonymous through a clarifying footnote. The TRIPS Agreement does not expressly preclude additional or differently taxonomized criteria, such as enablement and written description requirements.

Second, the term of protection for patents is expressed as a minimum: “The term of protection available shall not end before the expiration of a period of twenty years counted from the filing date.” Countries may thus provide longer terms if they choose. The same approach applies to copyright, trademarks, and designs. They are minimum standards with room for national variation.

Third, limits on allowable exceptions and limitations to exclusive rights are expressed through flexible norms. This is key. Rather than providing a finite list of permissible exceptions, the TRIPS Agreement employs tests like the Berne Convention’s three-step test in copyright law and similar frameworks for patents and designs. Article 30, for instance, permits countries to provide limited exceptions to patent rights, provided such exceptions do not “unreasonably conflict with a normal exploitation of the patent” or “unreasonably prejudice the legitimate interests of the patent owner.” This open-ended language is meant to allow countries to establish exceptions based on their national circumstances and policy objectives.

Fourth, WTO members retain substantial latitude regarding enforcement. While the TRIPS Agreement mandates that member states empower their judiciaries to issue both provisional and permanent injunctions, it does not prescribe the specific standards for doing so. The U.S. Supreme Court’s decision in eBay Inc. v. MercExchange, L.L.C., for example, established a four-factor test for injunctive relief that considers irreparable harm and the public interest—a more nuanced approach than automatic injunctions.

As a result of this flexibility, as the World Intellectual Property Office (WIPO) noted, there exists a “wide range of differences” among the patent laws of various nations. Some jurisdictions may grant patents on technology that would not be eligible for protection in other countries due to differences in patentable subject matter doctrines. Patents may be invalidated in some jurisdictions due to failure to meet disclosure or inventive step standards as applied there, even if they would be valid elsewhere. This diversity is not a flaw in the system but an intended feature, recognizing that countries have legitimate interests in tailoring their IP regimes to local conditions.

A recent WTO international arbitration has reinforced the centrality of territoriality to the TRIPS Agreement. The arbitrators explained:

[I]t is clear from the context of the first sentence of Article 1.1 that the TRIPS Agreement seeks to establish “national systems” for the effective and adequate protection of IP in each and every Member, and that these “national systems” may interact where necessary to address trade-related aspects of IP rights. The raison d’être of the TRIPS Agreement is to have minimum standards for the protection and enforcement of IP rights given effect through national systems in the territory of each WTO Member.
The use of the term “ raison d’être ” is particularly striking. It indicates that territoriality is not incidental to TRIPS but rather foundational to its very purpose and structure.

Implications for Jurisdiction and Choice of Law

The principle of territoriality profoundly influences jurisdiction and choice of law in cross-border IP disputes. Generally, each country’s courts have exclusive jurisdiction over the grant, validity, and infringement of IP rights within their national territories. The courts of Country (or Jurisdiction) A adjudicate matters concerning patents issued by Country A and copyrights arising under Country A’s law. Meanwhile, the courts of Country B, despite potentially having personal jurisdiction over the parties, lack authority to rule on the validity of Country A’s patents or the infringement of Country A’s copyrights. This allocation of jurisdiction reflects both the territorial nature of IP rights and principles of international comity. As Professor Ricketson explains:

For courts in territory A to decide questions of validity of a right in such a case is questionable under notions of “act of state” or international comity where the courts of one jurisdiction are reluctant, perhaps quite properly so, to enter into an examination of what has been done by a sovereign authority in another jurisdiction.
The correct application of territoriality requires courts to apply the lex loci protectionis, that is, the law of the country for which protection is sought. Simply put, the law of Country A governs the existence, scope, and infringement of IP rights granted in Country A’s territory, regardless of where the proceedings occur or the nationalities of the parties. Any deviation from this allocation risks producing inconsistent decisions and disrupting the carefully balanced territorial scheme of international IP law.

U.S. law generally adheres to this principle. The U.S. Court of Appeals for the Federal Circuit noted in Voda v. Cordis Corp. that “[n]othing in the Paris Convention contemplates nor allows one jurisdiction to adjudicate the patents of another.” The court added: “we as the U.S. judiciary should not unilaterally decide either for our government or for other foreign sovereigns that our courts will become the adjudicating body for any foreign patent with a U.S. equivalent.”

The word “equivalent” is important here. Not only are patents in different jurisdictions different legal assets, but they can also differ substantively. The language of individual claims often varies due to interactions with local patent offices. Some claims may be allowed in one territory but not another. Different jurisdictions have varying exclusions from patentability and different standards for anticipation, obviousness, or patentable subject matter. Therefore, analyses of scope, validity, and infringement, including the interpretation of the claims, may yield different results in each territory.

In copyright law, U.S. courts have shown similar commitment to territoriality. As the U.S. Court of Appeals for the Ninth Circuit explained: “‘[T]he United States copyright laws do not reach acts of infringement that take place entirely abroad.’ This holding derives from the longstanding rule that ‘[i]n general, United States copyright laws do not have extraterritorial effect.’” The court quoted legislative history explaining the rationale: “Extraterritorial application of American law would be contrary to the spirit of the Berne Convention, and might offend other member nations by effectively displacing their law in circumstances in which previously it was assumed to govern.”

The U.S. Supreme Court has repeatedly affirmed the presumption against extraterritorial application of federal statutes, including IP laws. In Dowagiac Manufacturing Co. v. Minnesota Moline Plow Co., the Court noted that “[t]he right conferred by a patent under our law is confined to the United States and its territories, and infringement of this right cannot be predicated of acts wholly done in a foreign country.” This principle continues to guide American courts in IP cases.

Territoriality and Cross-Border Exploitation

Importantly, the principle of territoriality does not prevent effective international exploitation of IP. It is common and legally acceptable to license and assign IP rights across national borders through voluntary agreements. The TRIPS Agreement explicitly affirms that patent owners have the right to assign or transfer patents and to enter into licensing contracts, reflecting the consensual nature of exploiting IP rights internationally.

For instance, a copyright owner in Country A can grant worldwide publishing rights to a publisher in Country B. Although copyright protection varies by country, the license allows the publisher to use the work internationally within the defined territorial limits and subject to each country’s law. Similarly, a patent owner can license manufacturing rights across multiple jurisdictions, with each license governed by the law of the relevant territory. Indeed, unlike with a patent, parties to a contract can choose jurisdiction and applicable law, a reflection of the fact that a multi-territorial agreement may provide courts in several jurisdictions with parallel jurisdiction over that contract.

This consensual, contractual crossing of national boundaries differs fundamentally from a court or governmental authority in one country unilaterally imposing global obligations. Private ordering across borders, facilitated by licensing agreements, respects party autonomy, freedom of contract, and the territorial nature of rights. It allows parties to structure their relationships in ways that account for territorial variations in IP protection while achieving their commercial objectives.

Continued Relevance of Territoriality

Some observers might question whether territoriality remains relevant in an era of globalized markets and borderless digital commerce. After all, creative works and patented technologies are routinely exploited across multiple jurisdictions, and many businesses operate internationally. Would a system of global IP rights better serve contemporary commercial realities?

Despite these considerations, territoriality retains vital importance. First, the diverse economic, social, and technological circumstances of different countries justify continued variation in IP standards. Developing countries may need different patent standards than developed nations to promote technology transfer and public health. Countries with different cultural traditions may reasonably adopt different approaches to copyright exceptions for education, research, or preservation. Territoriality preserves the policy space necessary for these variations.

Second, maintaining territorial boundaries for IP rights upholds fundamental principles of sovereignty and democratic governance. When a nation adopts IP laws through its legislative process, those laws reflect domestic policy choices made by or on behalf of its citizens. Allowing foreign courts or authorities to override these choices by imposing obligations regarding the nation’s IP rights would undermine its sovereignty and democratic legitimacy.

Third, territoriality provides a stable framework for resolving the inevitable conflicts that arise in cross-border IP disputes. When parties know in advance which country’s law will govern IP issues arising in each territory, they can structure their behavior accordingly and resolve disputes through established legal processes in appropriate forums. This predictability benefits rights holders, users, and the broader public.

Fourth, while regional systems (like the EPC) demonstrate that supranational IP administration is possible under certain conditions, extending such systems globally would require unprecedented institutional development and political consensus. In the absence of such institutions, territorial rights administered through national systems remain the most workable approach.

Finally, experience with regional and international cooperation in IP matters suggests that working within a territorial framework, while coordinating through treaties and mutual recognition, can achieve many of the benefits of global rights without sacrificing sovereignty or flexibility. The success of international IP treaties in establishing minimum standards while preserving national discretion demonstrates that territoriality and international cooperation are compatible and mutually reinforcing.

Promoting Innovation While Respecting Sovereignty

The principle of territoriality stands as a cornerstone of international IP law, shaping the system’s architecture across copyright, patents, and other forms of IP protection. Far from being an outdated obstacle to global commerce, territoriality serves essential functions in preserving national sovereignty, enabling policy flexibility, ensuring legal predictability, and maintaining the legitimacy of the international IP system.

Major international treaties have consistently embraced territoriality as a foundational principle. Leading scholars worldwide recognize it as basic to understanding how IP rights function internationally. Courts in various jurisdictions, when properly applying international law principles, respect territorial boundaries and refrain from adjudicating foreign IP rights.

At its core, territoriality reflects a fundamental insight: IP law involves contested value judgments about the proper balance between exclusivity and access, between private rights and public interests, between innovation incentives and competitive markets. Different societies, at different times and stages of development, will reasonably reach different conclusions about where to strike these balances. The territorial system respects this diversity while providing a framework for international cooperation through minimum standards and mutual recognition.

As technology continues to evolve and commerce becomes ever more globalized, pressures may arise to erode territorial boundaries in IP law. Such pressures should be resisted unless and until there emerges genuine international consensus on substantive IP standards and legitimate institutions capable of administering global rights in ways that respect diverse national interests. Until then, territoriality remains indispensable to a fair, effective, and legitimate international IP system, one that promotes innovation and creativity while respecting sovereignty, enabling flexibility, and maintaining predictability in our complex global economy.

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Endnotes

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Author

Daniel Gervais

Vanderbilt University Law School

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Author

Daniel Gervais

Vanderbilt University Law School

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