The team is joined by Guest Kats Rosie Burbidge, Stephen Jones, Mathilde Pavis, and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Hayleigh Bosher, Tian Lu and Cecilia Sbrolli.

Thursday, 26 October 2017

Book review: Grounds of the Immaterial - A conflict-based approach to Intellectual Property Rights

The book 'Grounds of the Immaterial: A Conflict-Based Approach to Intellectual Rightsby Niels van Dijk is the work of a philosopher who applied his skills to study IP litigation in its contribution to norm-making in this field. The book thus explores the creation of legal concepts such as 'ideas', 'invention' or 'work' from a philosophical perspective. This angle sheds a different light on a series of questions often debated within the IP scholarship: 'what is an idea?', 'what is an invention?', 'what is a work?'. Van Dijk puts forward that much of the substance given to these cornerstone yet porous concepts of IP laws are formed through litigation which is itself premised on conflict and/or antagonism.

In Chapter 4 and Chapter 5, van Dijk's investigation uncovers the journey of claims, pleas, and judgments and how a multitude of authors (clients, counsels, advocates, witnesses and judges to name the main protagonists) tailor the substance of IP law through the submission and performance of their own arguments often conflicting driven by conflicting agenda. This is perhaps the most valuable contribution of the book. Indeed, the author details in very concrete terms how the contributions of each actor involved in a dispute plays its part in shaping the content of the law, and also includes in this context an interesting reflection on the impact of the layout of the courtroom (pp. 117-131). Van Dijk's commentary sits half way between the narration of a philosopher and that of an anthropologist of the law. In this regard, 'Grounds of the Immaterial' can be seen as an extension of Kafka's philosophy of law as a process applied to intellectual property law - a reference which is well articulated by the author in the book (see for example, pp.116-117).

There is a clear effort of pedagogy on the part of the author to introduce to a lay audience the technical tools of philosophy he uses to deliver his 'traversal' read of IP law. To this end, Chapter 2 covers the notions of 'mental talks', 'practice theory' and 'networks of distributed cognition', among other techniques. All of these tools aim to unearth the complex mental phenomena underlying the practice of the law and the emergence of its guiding concepts.

The aim and the complexity of van Dijk's task makes for an ambitious project which is not always easily accessible to a reader with no background in philosophy. That said, this is consistent with the intended readership of the book which seems to target primarily scholars in philosophy, legal theory and legal anthropology, i.e. an audience with a more advanced knowledge of the theories developed by the author.

Book reviewed: Niels van Dijk, Grounds of the Immaterial, A Conflict-Based Approach to Intellectual Rights (2017). Published by Edward Elgar. 328 pages. Hardback Price: £90.00, available for online purchase at £81.00.ISBN: 978 1 78643 249 0.

1 comment:

Goethe said...

I think it's important to recognise the part that psychology and the empirical development of case law play in how the law develops in a very technical field like IP law. What is unfortunate is that individual judges or judgements don't get analysed in this way. Legal theory does of course influence judges, but judges are not trained to properly take into account how anthropology, philosophy or even psychology impacts how they assess their cases. No one tries to link the theory to the practice, and so the theory is remains an abstract intellectual exercise that does nothing to improve the actual legal system, and in particular IP law.

Subscribe to the IPKat's posts by email here

Just pop your email address into the box and click 'Subscribe':