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The Structure of Intellectual Property Law

The Structure of Intellectual Property Law

Can One Size Fit All?

ATRIP Intellectual Property series

Edited by Annette Kur and Vytautas Mizaras

This well-researched and highly topical book analyses whether the ever-increasing degree of sophistication in intellectual property law necessarily leads to fragmentation and inconsistency, or whether the common principles informing the system are sustainable enough to offer a solid and resilient framework for legal development.

Chapter 9: Intellectual Property and Technology – Looking for the Twelfth Camel?

Maciej Barczewski and Jerzy Zajadlo

Subjects: law - academic, intellectual property law


Maciej Barczewski* and Jerzy Zajadło** 1. INTRODUCTION A well-known contemporary German law theoretician Günther Teubner very often invokes the following anecdote in his work: An old wealthy bedouin sheikh wrote his will and divided his fortune, a large herd of camels, among his three sons. Achmed, the eldest son, was to inherit the first half of the fortune, Ali, the second son, should get a fourth, Benjamin, the youngest son, a sixth. When the father died, unfortunately only eleven camels were remaining. Achmed, of course, demanded six of them and was at once contested by his brothers. Finally, when everything broke down, they turned to the khadi. He decided: ‘I offer you one of my camels. Return it to me, Allah willing, as soon as possible’. Now, with 12 camels, the division was easy. Achmed got his half, 6 camels, Ali got a fourth, 3 camels, Benjamin a sixth, 2 camels. And indeed, the twelfth camel was left over which they kept and fed very well and happily returned to the khadi.1 In Teubner’s concept, the anecdote is an element of a certain vision of law as an autopoietic system. For law and lawyers, however, other morals may also be drawn from this tale. One of these may be as follows: the work of every lawyer, both theoretician and practitioner, as a matter of fact consists in searching for the twelfth camel. The law in the meaning of the established law (lex) very often is not perfect and...

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