Form in Intellectual Property Law


Form in Intellectual Property Law

9781783470549 Edward Elgar Publishing
David Booton, University of Manchester, UK
Publication Date: 2017 ISBN: 978 1 78347 054 9 Extent: 328 pp
This book sets out to expose, analyse and evaluate the conflicting conceptions of legal judgment that operate in intellectual property law. Its central theme is the opposition between law-making by way of the creation of generally applicable rules and law-making done at the point of application through case-by- case decisions tailored to the particulars of individual circumstances. Through an exploration of form, the analysis sets out to provide insights into how intellectual property law achieves a balance between various competing interests.

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Form in Intellectual Property Law sets out to expose, analyse and evaluate conflicting conceptions of legal judgement that operate in intellectual property (IP) law. Its central theme is the opposition between law-making through creation of general rules and law-making at the point of application through case-by-case decisions.

Using examples drawn from statutory and common law materials, the book offers a critical analysis of the factors that influence the form of legal directions in IP law. Through an exploration of form, the work provides insights into how the law balances the interests of rights owners and users and, more broadly, how it serves the public interest. These insights provide a basis for the evaluation of the contemporary economic and ethical justifications that are commonly advanced in support of IP law.

This book provides an original perspective on the significance of form in the law and will appeal to both academics and advanced students of IP law, as well as those interested in the law-making process, especially judicial decision-making and the exercise of judicial discretion.

Critical Acclaim
‘Form in Intellectual Property Law is erudite, wide-ranging and original. Engagingly written, it casts interesting new light on a number of fundamental concepts in IP.’
– Jonathan Griffiths, Queen Mary University of London, UK

‘In this wide-ranging work, David Booton throws fresh light on the underlying structure of IP law and its mix of hard-edged rules and open-ended standards. The way certainty and flexibility are reconciled to achieve just results is explored through a wealth of examples from case law and legislation. Mr Booton’s talent for expounding complex ideas clearly and directly ensures that anyone interested in the field – be they lawyer, scholar, judge, reformer, student, or member of the general public – will come away with a renewed understanding of the law’s aspirations, and of its deficiencies. Highly recommended.’
– David Vaver, University of Oxford, UK and Osgoode Hall Law School, York University, Canada

‘A fascinating and original insight into the operation of IP law – a must have for anyone serious about the subject’
– Margaret S. Llewelyn, University of Sheffield and Editor, Intellectual Property Quarterly

Contents: 1. Introduction 2. Form and legal adjudication 3. Legislative power and harmonisation 4. A conflict at the foundation 5. Form and the interpersonal/social dimension 6. Form and justifications Index

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