Robert Merges, ‘The Relationship between Foundations and Principles in IP Law’

In my book Justifying Intellectual Property (2011), I distinguish between two levels of discourse about the field of intellectual property (IP): the foundational level and mid-level principles. This paper elaborates on each, and describes in a bit more detail the relationship between them. Foundations concern the ultimate justification for an IP system. They answer the “whether” question: whether any plausible instance of IP law can be justified. Midlevel principles describe recurring themes from the actual practice of existing IP law. As such they are more concerned with “how”: how is an actual IP system structured, given that society has decided to have one. In this paper I explain two issues touched on in JIP: (1) how multiple, divergent sets of ultimate commitments can lead different people to construct different foundations for IP law; and (2) how midlevel principles facilitate the effective operation of IP law by providing a shared set of ideas, consistent with pluralist foundations, that both structure the operational details of the field and permit policy discourse about it.

Merges, Robert P., The Relationship between Foundations and Principles in IP Law (February 1, 2013). San Diego Law Review, Vol. 49, p. 957, 2012.

First posted 2013-05-10 06:47:32

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