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Form in Intellectual Property Law

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.
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Chapter 6: Form and justifications

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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