Vivant, Michel --- "Intellectual property rights and their functions: determining their legitimate ‘enclosure’" [2017] ELECD 950; in Ghidini, Gustavo; Ullrich, Hanns; Drahos, Peter (eds), "Kritika: Essays on Intellectual Property" (Edward Elgar Publishing, 2017) 44

Book Title: Kritika: Essays on Intellectual Property

Editor(s): Ghidini, Gustavo; Ullrich, Hanns; Drahos, Peter

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781786438980

Section: Chapter 3

Section Title: Intellectual property rights and their functions: determining their legitimate ‘enclosure’

Author(s): Vivant, Michel

Number of pages: 26

Abstract/Description:

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.