La aplicación de la función social de la propiedad intelectual a través del abuso del derecho: un análisis necesario para el sistema de derecho civil

In civil law systems, limits to intellectual property tend to be structured from a perspective of general and abstract regulations that lawmakers have previously judge as required and relevant. Although we recognize the importance and usefulness of this type of normative decisions, we must also admit that they can obviate particular aspects that are not incorporated in a general norm, or due to their characteristics, cannot be taken into account when creating the regulatory limit. In this sense, we propose the use of the law’s abuse figure as a relevant remedy for an antisocial exercise of intellectual property rights. For this purpose, we will use property’s social function as a criterion to define cases where abusive use (contrary to law’s purposes) may be identified, as long as property’s social function is understood as a limit to such rights. Finally, we will present the case of a similar figure, the Intellectual Property’s Misuse, which has served the same purposes in the common law systems.