Legal Method and Legal Interpretation in International Intelelctual Property Law: Pluralism or Systemic Coherence
in Susy Frankel (ed) Is Intellectual property Pluralism Functional? (Edward Elgar, Forthcoming)
21 Pages Posted: 14 Sep 2017 Last revised: 23 Nov 2018
Date Written: November 25, 2016
While pluralism and minimum harmonisation may have advantages concerning substantive requirements for IP protection there is an argument to be made in favour of establishing further harmonisation concerning rules and principles for legal interpretation of international or regional IP treaties, conventions and other legal instruments.
Increasing autonomy of IP Law as a legal discipline and the development of specialisation whiting different IP areas have resulted in different layers of sources of law, comprising specific scopes, validity and enforceability mechanisms. Specialised international, regional and national institutions are creating a body of ‘case-law’ following a specific set of interpretative logic, rules, principles or praxis.
This chapter focuses on legal interpretation, reflecting on policy options between pluralism and harmonisation in two separate levels: (1) the desirability of establishing, or not, further harmonisation of interpretative rules, criteria and praxis in IP law; (2) whether internal harmonisation or systemic coherence between different areas of law and regulation that affect the same object or legal fact is a desirable interpretative objective in IP law. The point of departure for the analysis is biomedical innovation and digitalization, using as examples technologies such as synthetic biology, 3D printing, and gene editing that present a multitude of horizontal challenges and consequently an opportunity for debating policy choices between ‘functional pluralism’ or ‘systemic coherence’. It is argued that developments in legal interpretation leading to systemic coherence, should simultaneously strive for a better understanding of pluralistic normative sources and structures. Maintaining legal certainty by coherence in legal interpretation should not undermine the need for an adequate level of flexibility and pluralism of legal traditions. It is necessary a critic stance towards the law, the inclusion of dynamic elements and consideration for interdisciplinary contributes. Emerging technologies do not necessarily require legal coherence, but systemic coherence can play an important role in legal responses to global technology-induced business models and social phenomena. Promoting early, but flexible, responses of the legal system to the challenges of digitalization and biomedical innovation is essential to improve transparency, accountability, legal certainty and respect for a democratic-based balance of rights.
Keywords: Legal interpretation & IP Law, Systemic Coherence & Legal Pluralism in IP Law, Digitalization Biomedical Innovation & Law, IP Law & Legal Method
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