Intellectual Property and General Legal Principles

Intellectual Property and General Legal Principles

Is IP a Lex Specialis?

ATRIP Intellectual Property series

Edited by Graeme B. Dinwoodie

The rule of lex specialis serves as an interpretative method to determine which of two contesting norms should be used to govern. In this book, the lex specialis label is broadly applied to intellectual property and connects a series of questions: What is the scope of intellectual property law? What is the relationship between intellectual property law and general legal principles? To what extent are intellectual property laws exceptional? Drawn together by leading IP scholar Graeme Dinwoodie, these questions and others are answered carefully and reflectively by a team of expert international contributors.

Chapter 5: Is IP law a lex specialis? A dual test

Gustavo Ghidini

Subjects: law - academic, intellectual property law


The question of whether intellectual property law is a lex specialis compels us to rethink intellectual property (IP) law in terms of systemic coherence. And consequently it also encourages an in-depth reconstruction of existing rules as well as the formulation of appropriate proposals for reforms thereof. This proposition needs elaboration (in several ways): first, on the precise meaning in relation to IP of lex specialis (or the concept of an ‘exceptional’ law). As concerns the field of IP, by lex specialis I mean a norm (including the interpretation of a norm) that, in regulating the conflicts of interests at stake, derogates from either or both of the following systemic tenets: (a) first, the coherence with the goals and purposes set by overarching principles of a (formally or substantially) constitutional nature, which should guide both legislators and interpreters in the sector of IP as well as in any other sector of ordinary law; (b) second, the internal consistency of IP law, reconstructed as a harmonized system of rules and principles, where any application of whatever rule to a case shall never contradict and/or bypass the relevant background principles of the IP system itself. I call this the dual test. The second tenet above simply reflects the need for ‘internal consistency’ (that is, non-contradiction) of IP law that pertains to every system of rules.

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