Ghidini, Gustavo --- "Is IP law a lex specialis? A dual test" [2015] ELECD 440; in Dinwoodie, B. Graeme (ed), "Intellectual Property and General Legal Principles" (Edward Elgar Publishing, 2015) 91

Book Title: Intellectual Property and General Legal Principles

Editor(s): Dinwoodie, B. Graeme

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781784714949

Section: Chapter 5

Section Title: Is IP law a lex specialis? A dual test

Author(s): Ghidini, Gustavo

Number of pages: 10

Abstract/Description:

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.