Pluralism, Principles and Proportionality in Intellectual Property

(2014) Oxford Journal of Legal Studies, Forthcoming

Oxford Legal Studies Research Paper No. 77/2013

Posted: 2 Aug 2013 Last revised: 14 Mar 2015

See all articles by Justine Pila

Justine Pila

University of Oxford - Faculty of Law

Date Written: August 1, 2013

Abstract

This review article offers a European perspective on the pluralistic, principles-based model of intellectual property (IP) advanced by Robert Merges in his book Justifying Intellectual Property. After introducing Merges’s model and theory of IP with reference to IP theories generally, other pluralistic legal models, and patterns of judicial reasoning in the patent and copyright fields, the article argues that European jurisprudence offers broad support for Merges’s operational model of IP, while also challenging certain aspects of his wider analysis. They include his ‘one size fits all’ foundational theory of IP, his account of key IP rules and practices, and his choice and conception of IP’s midlevel principles. Through this critique the article draws attention to the utilitarian bias of Merges’s model; a bias which undermines its pluralistic claims, in part by undermining Merges’s own foundational theory of IP. The result is to underline the limits of a regime unconcerned with its own normative basis, and the need for more rather than less discussion of IP theory, including more work of the type which Merges’s book undertakes.

Keywords: Intellectual property, justifications, pluralism, EU law, Europe, principles, copyright, patents

Suggested Citation

Pila, Justine, Pluralism, Principles and Proportionality in Intellectual Property (August 1, 2013). (2014) Oxford Journal of Legal Studies, Forthcoming; Oxford Legal Studies Research Paper No. 77/2013. Available at SSRN: https://ssrn.com/abstract=2304794

Justine Pila (Contact Author)

University of Oxford - Faculty of Law ( email )

St Cross Building
St Cross Road
Oxford, Oxfordshire OX1 3UL
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