Law and Literature in Intellectual Property Methodologies

Abstract

This chapter offers an overview of Law and Literature and explores three primary areas in which intellectual property (IP) scholarship engages with Law and Literature’s methods and tools: the creation of objects that give rise to rights; the definition and enforcement of those rights and their limits; and the narrative of progress and revisionist theories of the field. IP concerns intangible constructs: works, inventions, secrets, marks, or personas. IP ownership implicates theories of representation given the symbolic nature of IP rights to the things they protect, and determining the scope of protection almost always entails multiple interpretive steps. Hence theories of representation and interpretation are relevant to defining the work, assessing the scope of protection, and conducting infringement analysis. Lastly, Law and Literature offers larger narratives about IP that centre on values, history, textuality, theory, culture, context, selfhood, or community. Law and Literature has helped broaden beyond the narrow utilitarian framing of the received approach to IP and thus provided disciplinary cover for pluralistic accounts of the field to emerge. In this revisionism, the three main strands of Law and Literature—which centre on practical wisdom, interpretation, and narrative—offer diverse alternatives for measuring progress or evaluating the IP system in broader sociological and constitutional context.