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David Booton

Rules provide a before-the-fact specification of legal outcome. They may be contrasted with standards, which differ in the degree of discretion they allow the decision maker. Sometimes circumstances dictate that rules are appropriate, and sometimes not. Often, though not invariably, the choice comes down to a decision as to whether certainty of expectation should be given priority over flexibility in the particular context subject to regulation. There are many areas of intellectual property law which conform to this pattern. But there is a more complex story to tell in respect of the fundamental context of marking the boundaries of protectable subject matter. Broad ‘pro-rules’ and ‘pro-standards’ positions in intellectual property law can be related to ideas concerning the use and sharing of ideas and the role of law in this aspect of the ordering of society. Keywords: form; substance; duties; rights; intellectual property

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David Booton

Differing conceptions of legal judgement feature in many legal disputes. The ubiquity of the conflict reflects a deeper conflict between certainty and flexibility. Rules provide a before-the-fact specification of legal outcome. Decision making according to rules is thus desirable when certainty is valued. Standards differ in the degree of discretion they allow the decision maker. Standards allow decisions to be tailored to the circumstances of individual disputes. Standards are thus useful when flexibility is important. Intellectual property law is home to many such directions of this form. Flexibility is of value both to avoid the law becoming anachronistic in light of societal changes and also where the law aims at regulating widely varying conduct. It would, for instance, be impracticable to draft a rule that enumerated all the conceivable relationships between the intellectual objects protected by law and the various ways these can be imitated, copied or adapted. Keywords: rules, standards, discretion, certainty, flexibility

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David Booton

The choice between rules and ‘rulelessness’ can be seen as presenting a principal–agent problem, where the legislature, as principal, by the adoption of a certain form of legal direction, aims to control the decisions of its agents (the courts). The merits and demerits of ex ante versus ex post decision making; the avoidance of the perception of bias in decision making; and the demands and attendant costs of harmonizing the national intellectual property laws of European countries, one way or another, can be seen in these terms. There are considerable tensions when different factors influencing choice of form point to contradictory outcomes. Keywords: legislature; courts; ex ante; ex post; bias; harmonization

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David Booton

In something as fundamental as marking out the boundaries of protectable subject matter, form matters. The certainty of a rule depends on the context over which it exercises control. So far as the single foundational context of defining that which is protected, invariably the security of expectation that rules generate is compromised by the simultaneous operation of a standard that occupies the same territory as the rule. Whether we are talking of patents, copyright or trade mark, we are left with the question of why, in this context, there are rules at all given that their effects are embraced entirely by the operation of a standard. Keywords: subject matter; definition; rules; standards; security

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David Booton

The intellectual property system, in allowing individuals to appropriate ideas using the force of law, provokes a debate in which will feature the opposed attitudes of individualism and altruism. Showing how the form of legal directions relates to these opposing paradigms goes some way to render the contribution of ‘policy’ in decision making more intelligible in this area of the law. How far the rule form is associated with securing claims and strengthening the position of right holders and the standard form associated with limiting scope and facilitating public access reveals important aspects of how the law regulates the relations between rights owners and users and how the law gives effect to the notion of the public interest. Keywords: individualism; altrusim; rules; standards

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David Booton

Economic justifications see intellectual property rights of all kinds as providing some security of expectation and thus as a means of managing some of the uncertainties associated with a competitive free market. Merely exposing the conflict between rules and standards thus raises questions about the credibility of such justifications. Rules exist within the system but are typically partnered by standards. Whilst the rules are positioned in a way that encourages individuals to labour diligently and invest freely in the expectation that they will be able to secure a legal right over their productions, the testing ground for claims of right is the realm of duties and here standards dominate decision making. The fact that duties figure so significantly when rights are put to the test does not undermine the economic justifications advanced in support of intellectual property but does fatally undermine deontological justifications. Keywords: theory; incentive; economic; justification; Locke; Kant

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David Booton

This book sets out to expose, analyse and evaluate the conflicting conceptions of legal judgment that operate in intellectual property law. Its central theme is the opposition between law-making by way of the creation of generally applicable rules and law-making done at the point of application through case-by- case decisions tailored to the particulars of individual circumstances. Through an exploration of form, the analysis sets out to provide insights into how intellectual property law achieves a balance between various competing interests.