Justine Pila, ‘Lord Hoffmann and Purposive Interpretation in Intellectual Property Law’

It would be impossible in a single chapter to do justice to Lord Hoffmann’s contribution to intellectual property. Given that, my aim in this contribution to his Festschrift is the more modest one of considering certain criticisms that have been leveled at his opinions, and asking whether (to borrow an expression from patent law) they are ‘fairly based’. If the criticisms have a common theme it is one of timidity; a word some may be surprised to hear in connection with Lord Hoffmann. Nonetheless, it has been suggested that some of his most important opinions in intellectual property — for example, those concerning the patentability requirement of novelty and the substantial part test of copyright infringement — have been timid in the face of three things: (a) European authority; (b) IP rights that trammel on public freedoms; and (c) legal uncertainty. In the current chapter I consider these criticisms and reject them. In the argument I make, such ambivalence on these matters as can be read in Lord Hoffmann’s opinions are merely a reflection of his commitment to giving effect to the policy choices of the legislature. I also defend his particular, purposive, interpretive approach on substantive and methodological grounds, and support the ascendancy of proportionality as a methodological tool in IP — including as a test of fair dealing in copyright — as a means of perpetuating and extending its influence.

Pila, Justine, Lord Hoffmann and Purposive Interpretation in Intellectual Property Law (March 2015). PS Davies and J Pila (eds), The Jurisprudence of Lord Hoffmann (Oxford: Hart Publishing, 2015); Oxford Legal Studies Research Paper No 10/2015.

First posted 2015-03-04 07:55:40

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