Is IP a Lex Specialis?
ATRIP Intellectual Property series
Edited by Graeme B. Dinwoodie
As part of the maxim Lex specialis derogat legi generali, the rule of lex specialis typically serves as an interpretative canon to determine which of two competing norms should govern. Even within this narrow rubric, consideration of the maxim throws up some difficult questions: most fundamentally, what is the scope of this thing called ‘intellectual property law’ that constitutes a lex specialis, and which is the body of general law against which possible displacement by special rules is to be considered? As to the former, the vintage of the term ‘intellectual property’ has been the subject of some scholarly exploration. At the international level, it might be thought to represent some amalgam of ‘industrial property’ (patents, designs and marks) dealt with by the Paris Convention and ‘literary and artistic property’ addressed by the Berne Convention. But that undoubtedly is too simple an explanation. Even with a definition of ‘intellectual property’ now contained in the TRIPS Agreement, there remains debate about the borders of the concept, let alone its essence. Thus, the narrow task of applying the maxim lex specialis derogat legi generali to such matters as copyright, patent, trade mark and their allied regimes (to pick a non-definitional phrase) would present plenty of opportunities for disagreement. In this volume, the lex specialis label is used even more broadly, however, to connect a whole series of possible questions, including at the most abstract level: what is the relationship between intellectual property law and general legal principles?