The challenge of evidence-based intellectual property law reform: Legal pragmatism meets doctrinal legal reasoning
Intellectual property (IP) is an important instrument of innovation, cultural and growth policies. A key trend in the quest for “better” IP lawmaking is to base policies and their elaboration into effective legal norms on empirical (economic) evidence. Today’s IP laws, however, are still the result of a more doctrinal approach, giving consideration primarily to coherence and formal consistency with legal-theoretical foundations. Arguably, an increased focus on evidence-based policy requires a more legal pragmatic approach to IP lawmaking. This research explores how a legal pragmatic approach can best be reconciled with the prevailing doctrinal approach to IP lawmaking in a way that combines the strengths of both approaches, and curtails their weaknesses. In so doing, the research aims to improve the quality of IP lawmaking and further the progress and development of IP law.
To identify and assess ways in which evidence-based lawmaking can be integrated in IP reform, this project will situate evidence-based policy in conflicting theories and practices of legal doctrinalism and pragmatism in IP law. This requires comparative legal research and a multidisciplinary literature review. Furthermore, two IP case studies shall be conducted to analyze doctrinal and pragmatic legal reasoning at work and qualitative interviews will be held with IP lawmakers to assess what challenges they encounter bringing evidence-based lawmaking in practice. The research will not only contribute to the theoretical foundations of evidence-based IP lawmaking, but also benefit IP lawmakers, creative industries and other actors involved in the IP lawmaking process through the development of guidelines and best practices for implementing evidence-based policy in IP lawmaking.