The Role of Comparative Legal Analysis in Intellectual Property Law: From Good to Great?

Methods and Perspectives in Intellectual Property Law, Edward Elgar, (Graeme B. Dinwoodie ed.) 2013, Forthcoming

Posted: 23 Feb 2013 Last revised: 12 Jul 2016

See all articles by Irene Calboli

Irene Calboli

Texas A&M University School of Law; Faculty of Law, University of Geneva; Hanken School of Economics; Singapore University of Social Sciences

Date Written: December 1, 2012

Abstract

In this work, I analyze the role of comparative law and comparative legal analysis in the area of intellectual property law. Because the protection of intellectual property rights is inextricably connected to international trade, intellectual property law is one of the most internationally and regionally harmonized fields of law, and has been so since the late nineteenth century. Comparative legal analysis has undoubtedly played an important role in this process of harmonization. Intellectual property scholars have traditionally engaged in comparative legal analysis in the areas related to intellectual property law across a variety of jurisdictions. Throughout their comparative scholarship, intellectual property scholars have facilitated the process of international and regional harmonization by clarifying the respective status of national laws, and at times by criticizing the desirability of the proposed international standards. Scholars have additionally engaged in comparative legal analysis to assess the consequences of the adoption of international standards into national laws. Still, despite the existing considerable tomes of comparative legal scholarship, the perceived importance attributed to comparative legal analysis seems to vary among legal scholars also in the area of intellectual property law similar to mainstream comparative law. This may be attributable to cultural or institutional differences among scholars in different countries.

My analysis proceeds as follows. In Part II, I provide a general overview of comparative law and of the methodology (or rather the controversy surrounding the methodologies) of comparative legal analysis. Such an overview is in order, as comparative law has traditionally been an area of controversy where debates range from the very recognition of comparative law as an independent legal discipline to the type of methodology that comparative legal analysis should follow. Based upon this premise, I elaborate, in Part III, on the current role of comparative legal analysis in the specific area of intellectual property law. Due to the limited scope of this work, my analysis is not exhaustive. Notably, I emphasize that comparative legal analysis seems to be already a largely used research technique by scholars in this field consistent with the long tradition of international harmonization of intellectual property law. I note, however, that variation exists among intellectual property law scholars with respect to the importance of the role of comparative law and comparative legal analysis. More generally, I highlight the challenges that intellectual property law scholars face while conducting comparative legal analysis. These obstacles are the same obstacles that typically face comparative scholars in any field of legal study, and range from different theoretical frameworks to language barriers, cultural differences, and different national interests. Despite these recognized differences, I argue, such obstacles should not diminish the general benefits that comparative legal analysis can bring to the advancement of the study of intellectual property law (or any field of law) in every country.

Keywords: comparative law, intellectual property

Suggested Citation

Calboli, Irene, The Role of Comparative Legal Analysis in Intellectual Property Law: From Good to Great? (December 1, 2012). Methods and Perspectives in Intellectual Property Law, Edward Elgar, (Graeme B. Dinwoodie ed.) 2013, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2221919

Irene Calboli (Contact Author)

Texas A&M University School of Law

1515 Commerce St.
Fort Worth, TX Tarrant County 76102
United States

Faculty of Law, University of Geneva ( email )

Geneva
Switzerland

Hanken School of Economics ( email )

Helsinki
Finland

Singapore University of Social Sciences

Singapore
Singapore

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