Kritika: Essays on Intellectual Property
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Kritika: Essays on Intellectual Property

Volume 2

Edited by Gustavo Ghidini, Hanns Ullrich and Peter Drahos

The fields of intellectual property have broadened and deepened in so many ways, and at such pace, that there is a tendency for academic commentators to focus on the next new thing, or to react immediately to judicial developments, rather than to reflect more deeply on the greater themes of the discipline. Kritika: Essays on Intellectual Property is a series of books designed to fulfil this role by creating a forum for essays that take a critical, long-term approach to the field of intellectual property. Volume 2 covers issues such as inter alia the current limits of knowledge and approaches to intellectual property, a functional account of intellectual property rights, China’s approach to innovation and intellectual property, the emergence of multi-layered IP-protection for designed objects, and the trajectory of increased protection for intellectual property.
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Chapter 3: Intellectual property rights and their functions: determining their legitimate ‘enclosure’

Michel Vivant


The argument of the paper begins from the position that property does not have an essential meaning from which one can mechanically derive rights and obligations. From a rejection of a positivist analysis of property, the paper moves to arguing for a functionalist analysis of intellectual property in which functions are not pre-ordained but rather emerge through a process of social construction. The key analytical issue relates to social expectations concerning the service role of intellectual property rather than a supposed essence located in the idea of exclusivity. Once we have a clear view of these social expectations we can invoke the idea of functional necessity when it comes to deciding those uses of objects of property that may be reserved for some period of time for individuals and those that are for social use. This abstract argument is illustrated with various examples drawn from the trade mark jurisprudence of the European Court of Justice, patent law including the Bolar exception, compulsory licences and gene patents, as well as copyright law. Keywords Intellectual property theory, functionalism, trade marks, patents, gene patents, compulsory licences, copyright exceptions.

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