Is IP a Lex Specialis?
ATRIP Intellectual Property series
Edited by Graeme B. Dinwoodie
Chapter 5: Is IP law a lex specialis? A dual test
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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