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.
You are not authenticated to view the full text of this chapter or article.
Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.
Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.
Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.