Directions in intellectual property law research: a linguistic contribution

Durant, Alan ORCID: https://orcid.org/0000-0001-5208-4718 and Davis, Jennifer (2021) Directions in intellectual property law research: a linguistic contribution. In: Handbook on Intellectual Property Law Research: Lenses, Methods, and Approaches. Calboli, Irene and Montagnani, Maria Lillà, eds. Oxford University Press, Oxford, pp. 344-360. ISBN 9780198826743, e-ISBN 9780191865695. [Book Section] (doi:10.1093/oso/9780198826743.003.0023)

Abstract

The questions in intellectual property (IP) law which most directly engage language fall into several types. ‘Language’ questions may concern particular signs or stretches of language examined for their registrability as a trademark, or disputed in relation to alleged infringement of literary copyright. Other kinds of words and phrases may also create difficulty, such as the words ‘distinctive’ or ‘generic’ which describe features of, and categorize, such signs or stretches of language. Such words and phrases establish a metalanguage that overlaps with frameworks in linguistics (e.g. ‘noun’, ‘consonant’) yet differs from such frameworks both in detail and purpose. Across all IP subject areas, a further kind of language, the field’s legal terms of art, defines the intangible subject matter, doctrines, and rationales of IP law, giving specialized legal meaning to otherwise general words and phrases whose meaning in law may nevertheless be contested. Such terms remain in concurrent use beyond law, with related but different meanings, and may therefore also be problematic when relied on in policy formation and in public debate about what IP is. ‘Language’ in these and other IP contexts is not, we argue, a single, unified topic. Rather, it consists of a number of very different kinds of language use, which raise different questions and call for varied forms of analysis. This chapter describes and illustrates those specialized kinds of language use. It also discusses prominent examples of research into them by legal scholars and linguists, and highlights further topics that may be amenable to linguistic investigation. In conclusion, we explain why specialist linguistic expertise is less important in such study of than interdisciplinary, legal and linguistic collaboration.

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