Remarks: 'One Size Fits All': Consolidation and Difference in Intellectual Property Law

Abstract

These remarks to the 2008 ATRIP Annual Conference addressed the question of whether “one size fits all” in intellectual property law. Are there sufficient commonalities among the component parts of the field that we could realistically construct a unitary body of intellectual property law? I first set out the different inquiries that might be subsumed by the question of whether “one size fits all” in intellectual property law, focusing on the possibility of a single form of intellectual property, common treatment of different subject matter within regimes, and uniform intellectual property laws across borders. Focusing on this last aspect of the question, I note that the backwards-looking aspect of the classical international system, which tended to favor national autonomy and keep internationally-mandated levels of protection low, has been somewhat disrupted of late. Although it remains the case that one size does not fit all, there is much to be gained by seeking greater commonality. But if the focus of the current international system requires greater commonality - greater attention to a one size fits all approach on certain issues - it does so both with respect to the rights conferred on IP right holders and with respect to the new rights that might potentially be conferred on users.