Edited by Jacques de Werra
Chapter 11: A concept proposal for a model intellectual property commercial law
Intellectual property (“IP”) assets have become increasingly important in everyday global commerce. Information products and services are now driving productivity and growth in both developed and developing coun- tries. The methods for creating and distributing these IP assets have become incredibly rich and diverse, with the result that commercial transactions in information have grown in size and complexity. Unfortunately, there is a gap in the law. IP law generally focuses on recognition and protection of the property right. While some IP laws contain specific provisions for some types of contracts, usually publishing, IP law does not usually contain provisions that deal with IP commercial contract law. This is unfortunate, because in order to flourish a commercial sector requires not only property rights, but also recognition and support for the contractual arrangements involved in utilizing the property rights. While a State’s general contract law addresses formation and enforcement of contracts of all kinds, it rarely includes provisions specifically tailored to support IP commerce. The result is that operating effectively in the IP marketplace may require specialized legal knowledge, extensive commercial experience, and elaborate contract forms. This can create barriers to entry new actors, especially small and medium enterprises, as well as increasing transaction and performance costs for all parties. As it is well known, there are systemic costs to routinely “reinventing the wheel”. The common solution to this problem is “commercial law”. Commercial law is the body of contract law that deals with the needs of discrete economic activities
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