Abus et Propriété Intellectuelle ou du Bon Usage des Droits
Intellectual property is ubiquitous, is the cause of all things, and we often blame it when problems arise. Its omnipresence is a measure of its sophistication, which can make it particularly harmful. It is embroiled in everything and is difficult to explain. This is in part due to its specialized and highly inaccessible nature, traits that are encouraged and maintained by those who have a vested interest, such as lawyers, and because of it, legal norms become meaningless. The law, in intellectual property, serves many masters and many interest groups. This law is truly a “balancing act.” Intellectual property, therefore, is not in charge, and its normative function is reduced to functional arbitration of conflicts. Law is not a means to an end other than compromise. Yet, at the beginning of the twentieth century, an era during which we sought to enrich the law with contributions from other disciplines, we cling to a belief in functional rights and the possible instrumentalisation of intellectual property law in the public interest. This chapter attempts to rehabilitate the idea of the “spirit of the rights,” with the goal, perhaps, of preventing antisocial uses of intellectual property rights.
Pierre-Emmanuel Moyse is an Associate Professor at McGill University, Faculty of Law, and the Director of the Centre for Intellectual Property Policy. He is also responsible for the joint MBA-Law program in partnership with the Desautels Faculty of Management. Professor Moyse wrote his doctoral thesis on the law of distribution in copyright law (University of Montréal, published 2007) under the direction of Professor Ysolde Gendreau. In the same year, he successfully argued the case of Euro-Excellence v Kraft Canada before the Supreme Court of Canada.