Common law is functionally distinct from legislative intellectual property law.
Shyamkrishna Balganesh 10. [Assistant Professor of Law, University of Pennsylvania Law School. “The Pragmatic Incrementalism of Common Law Intellectual Property” Vanderbilt Law Review, volume 63, issue 6. November 2010. https://scholarship.law.upenn.edu/faculty_scholarship/305/]//dawn
Common law intellectual property has thus far received little systematic analysis. While scholars have long studied individual common law regimes to understand their place in the overall intellectual property framework, 23 hardly anyone has sought to examine the one unifying factor that connects these different regimes-their genesis in the common law. What does it mean for an intellectual property regime to have originated in the common law?
First, it implies that judicial decisions are the principal source of legal rules for the regime. The common law is judge-made law.2 4 This is not the same as statutory interpretation, where judges fill gaps in a statutory enactment. In the common law, the absence of legislation is seen as an active delegation of lawmaking power to courts. Courts extrapolate rules and principles from their prior decisions, applying them to the specific dispute at hand. In the process, the court fashions a new rule or exception by drawing from disparate areas of tort, contract, restitution, and property law relying entirely on logic and experience. 25