Two different questions, two different laws
Cross-border IP turns on a distinction most contracts ignore. Contractual questions - interpretation, breach, remedies, and the validity of assignment and licensing provisions - are governed by the law the parties choose. Choose English law and English contract principles apply to those questions, wherever the parties are and wherever the IP sits; this is party autonomy under assimilated Rome I, Article 3.
Proprietary IP questions are different. Whether copyright subsists, who is the first owner, and the scope and duration of protection are governed by the law of the country for which protection is sought (the lex loci protectionis). Under assimilated Rome II, Article 8, the law applicable to an IP infringement is the law of the country for which protection is claimed - and Article 8(3) expressly excludes party choice of law for these questions.
The disconnect risk
The consequence is a disconnect that catches drafters out. The CDPA 1988 and the Patents Act 1977 determine initial IP ownership only for IP created in, or connected to, the UK. If a Singapore developer creates software for a Japanese client under an English-law contract, English law governs whether the assignment clause is valid as a matter of contract - but who first owns the copyright is decided by the IP law of each country where protection is sought, not by the CDPA.
So you cannot rely on English statutory defaults to deliver ownership of non-UK IP. The English statutes are useful reference points for structuring the allocation, but local IP law governs initial ownership in each jurisdiction.
What the courts have said
The position is well-established. In Lucasfilm Ltd v Ainsworth [2011] UKSC 39, the Supreme Court confirmed that English courts can adjudicate foreign copyright claims where there is personal jurisdiction over the defendant - but the court applies the relevant foreign copyright law, not the CDPA, to the proprietary question. The US courts take a comparable approach: in Itar-Tass Russian News Agency v Russian Kurier (153 F.3d 82, 2nd Cir 1998), ownership was determined by the law of the country of origin (Russia), while infringement was judged by US law.
So an English court (or a foreign one) will look to the right country's IP law for ownership - and that may not be the law the parties chose for their contract.
Drafting for the cross-border reality
A robust IP clause must do two things at once: work under English contract law (which governs the assignment and licensing mechanism), and be recognised and enforceable under the IP law of each country where the IP will be protected. The tools are jurisdiction-neutral assignment language (assigning all IP rights in any jurisdiction worldwide), present-assignment wording, and a further-assurances obligation to perfect title where local formalities require it.
Pair that with a governing-law clause that expressly extends English law to the interpretation and validity of the IP provisions, so there is no argument that the IP allocation falls outside the chosen law.
What to check
In review, separate the two questions. Confirm the governing-law clause covers the IP provisions; then check the assignment and licence wording is jurisdiction-neutral and backed by further assurances, so it can be perfected wherever protection is sought. Do not assume the CDPA or Patents Act will supply ownership of non-UK IP - identify the jurisdictions where the IP matters and make the clause robust under each.
The cross-border failure mode is a clause that is perfectly valid under English contract law but does not actually vest ownership where the assets are - which is exactly where you need it to.
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Practical checklist
- Separate the two questions: the chosen law governs the contract; local IP law governs ownership and subsistence.
- Do not rely on the CDPA 1988 or Patents Act 1977 for ownership of non-UK IP.
- Remember party choice of law is excluded for proprietary IP questions (assimilated Rome II, Art 8(3)).
- Use jurisdiction-neutral assignment language covering all relevant countries (Lucasfilm v Ainsworth [2011] UKSC 39).
- Add a further-assurances obligation to perfect title where local formalities require it.
- Extend the governing-law clause expressly to the interpretation and validity of the IP provisions.
This guide is informational only and is not legal advice. It does not replace advice from licensed counsel on the facts of a specific transaction.
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