Is IP a Lex Specialis?
ATRIP Intellectual Property series
Edited by Graeme B. Dinwoodie
Chapter 1: Contract lex rex: Towards copyright contract’s lex specialis
Intellectual property regimes, of which copyright law is generally perceived as a constitutive part, create entitlement interests, whereas contract law manages these entitlements. Copyright is thus inextricably bound to contract law. In practice, this relationship is one of subordination: contract law trumps the various entitlements copyright creates. As a result, the aims of copyright law must constantly confront the law of contract and the values on which it is premised. When this confrontation leads to tension between these two domains of law, legislatures and courts ensure that the law of contract reigns supreme, and is the lex rex. It may be tempting to reduce this issue to an inevitable consequence of having a lex generalis, such as contract law, refuse to cede ground to a lex specialis like copyright; indeed, one might thus question the lex specialis nature of copyright vis-à-vis contract law. Perhaps copyright law is the lex generalis, with contract law being lex specialis on matters of contract. But, as this speculation suggests, to engage in this kind of categorization does little to advance a solution to the tension. Ultimately, defining copyright’s specialis status is much less consequential than explaining its relationship to contract law, and it is that hierarchical relationship that has the most bearing on creators who fuel the cultural industries, especially freelance authors. A more integrative approach is therefore vital.