Domain of Intellectual Property

• Copyright law• Patent law• Trademark law• Tradesecret law• The “right of publicity”

Some Important Historical Events Concerning Intellectual

Property• First patents - 15th century in England

and Italy• Statute of Anne – 1709 gave rights to

authors, publishers, and specified when works entered the public domain

• US Constitution – 1776 gave Congress the right to grant copyrights and patents – first copyright statute in 1790

American Foundational Beliefs

• Freedom – Information is social wealth owned by all such that we have: (1) freedom of speech, (2) freedom of thought, and (3) freedom to learn

• Facts and ideas cannot be owned, suppressed, censored, or regulated

Control of Information

• Privacy issues concern the control of information

• Digital copyright concerns the control of information

• The key question is for whose benefit?

Intent of Copyright Law?

• Copyright law – Aims to balance the interests of the creator

of a work and the public by giving economic incentives to the creator and distributor

– Neither the creator nor the public hold all the rights to a work

• The commons is the source of ‘raw material’ for creating a work

• Copyright systems are socially created

US Copyright Law

• Rights– Reproduce the work in fixed tangible copies– Create adaptations– Distribute copies to the public– Perform and display publicly

• Exceptions– Buyer of a copy can keep it, loan it, rent it,

and resell it

• Copyright covers the depiction of an article, not the article

Additional Features of US Copyright Law

• Fair use covers quotations, parodies, photocopies for classroom use, home videotaping of TV programs

• Most exceptions are narrow• Copyright owners are given no

control over private performance or display, loaning the work, ideas, or facts

Who Cares?

• Until now, copyright law has been aimed at organizations and institutions

• Historically, copyright law only affected organizations, not individuals

• Copyright law was developed by special interests and is arcane and incomprehensible

• Affected organizations have their own staff of lawyers to interpret copyright law

Effects of Digital Technology

• Everyone can become a publisher – blogging

• P2P distribution• Digital technology enables

monitoring and metering and consequently pay-per-view

Technological Change

• Copyright law is susceptible to technological change because– The process of negotiating new law

strongly favors vested interests– Because of the ad hoc exception

laden nature of existing law it cannot anticipate technological change

Copyright Law Revision

• Affected industries negotiate changes and present them to Congress ensuring that– No affected party will agree to anything that

leaves it worse off than the status quo– Outsiders who use new technologies will be

given short shrift– Exceptions are added making new law even

more arcane and complex and therefore a barrier to entry

Fair Use: Rose-Acuff v. Campbell

• http://www.benedict.com/audio/audio.aspx

Copyright Law is Bizarre!

• Imagining alternative treatments of a film

• This falls under the notion of derivative works

• Playing a CD in a restaurant• The length of a copyright or

protection for Mickey Mouse™

1900 – 1909 Copyright Conferences

• First conference convened by the Librarian of Congress– Those invited included authors, artists,

librarians, publishers, etc.– Those not invited included motion picture

industry, the piano roll industry, and the talking machine industry

• After much contention, the fourth version of a bill established licensing for mechanical reproductions of music & exempted coin operated devices

1910 – 1912 Conferences

• The issue of a film of Ben Hur by Lew Wallace

• Movie industry concerns were addressed, but not those of theater owners

• 1912 Bill – winners included movie industry, live theater owners; losers included authors of non-dramatic works

1914 - 1940

• New players included ASCAP, radio broadcasters, phonograph manufacturers, and theater owners

• Lengthy negotiations, numerous bills and amendments, growing dissatisfaction

1950 - 1961

• New media – radio, jukeboxes, Muzak®, TV, xerography

• Continued bickering

1976 Copyright Law

• Broad rights and narrow limitations• An example of a broad limitation is

‘fair use’• Satellite Home Viewer Act• Audio Home Recording Act

World Intellectual Property Organization (WIPO)

• Although the US agreed to honor British copyright law in 1891, it refused to sign the Berne agreement until 1989

• The US was a net copyright importer until the last part of the 20th century, now we are a net exporter

• Current Berne agreement gives the author ‘moral rights’ - how a work can be used

Patent Law Expansion

• Industrial design to include containers and display racks (1842)

• Plants• Surgical procedures• General shift in favor of patentees

including: lessening of requirements for patentability, novelty, non-obviousness, utility

Trademark Law Expansion

• Originally trademarks had to include the name of the manufacturer

• Expansion to include package & container, uniforms, e.g. Dallas Cowboy™ cheerleader uniforms

• Expansion of geographic range• Expansion to non-competing

industries• Increased remedies for infringement

Economic Causes of IP Law Expansion

• Change in the basis of the US economy

• Transformation of the US from a net consumer to a net producer of IP

• Increase in the importance of marketing

Ideological Causes of IP Law Expansion

• Locke and the desert/labor theory of property

• Should the government be involved in promoting socially valuable art and inventions

• Romantic view of the artist/author and inventor

Rhetorical Causes of IP Law Expansion

• Shift in terminology– Originally patents and copyrights

were conceptualized as monopolies– Information as property

• Shift in how trademarks were justified

– Use of terms like stealing and piracy

• Speech has power

“Right of Publicity”

• Celebrities can prevent the use of their identities

• “Here’s Johnny”• Bette Midler look-alike, sing-alike

and Ford™

Four Theories of IP (Fisher)

These influence how legislators, the judiciary, and the public view IP

• Utilitarian – Maximization of benefit• Locke’s desert/labor right of property – the

right to the fruits of one’s labors• Hegelian personality theory – inventions and

creations are extensions of one’s personhood

• Social planning approach – IP law should be crafted to create a just and attractive society

Utilitarian Rationale for IP Law

• For patents and copyrights, there is a high ratio of development cost to production cost. Therefore once the invention is known, there are low barriers to entry

• It’s necessary to provide incentives to creators so they will continue creating

• For trademarks– They provide a reduction of search costs– Incentive for businesses to provide consistently high

quality of goods and services– Improve the quality of language by adding more

nouns, e.g. a Xerox, Viagra

Property Theory Rationale

• Person who labors on resources that are either unowned or held in common has a natural right to the fruits of those labors

• This must not result in net harm– For example if the commons is depleted– Note also the example of two independent

inventions

• Terms like stealing and piracy are predicating on a notion of property

Personality Theory

• Property rights are essential to basic human needs – we are defined by what we create– Legal protection of highly expressive

activities– Public image deserves legal protection– Authors and inventors should not

surrender their right of prevent others from distorting or destroying their work

Social Planning Theory

• One example asserts the value of democratic institutions and suggests the following– Shorten copyright term to increase

the public domain– Reduce owner control of derivative

works also to increase the public domain

Some Interesting Questions

• Is tiered pricing justifiable? – As an example think of

pharmaceutical prices

• Why should copyright term be increased from life of author + 50 to life of author + 70?– Does this foster greater creativity?– Do authors deserve greater rewards?

More Questions

• Why should it be possible to trademark a particular sound of a motorcycle?– Does this reduce consumers’ search

costs?– Are there benefits to our culture?

Point of Examining Theory

• These theories are the basis of how people think about IP

• Each theory fails in a way however, they provide the basis for dialogue

• The lack of dialogue about IP is a cause of writing laws that have unintended consequences

Question

1) IP law should be short, clear, and fair so we can understand it and follow it.

2) Congress is the public’s IP lawyer. It should represent the public interest.

Is it possible to get the sort of law described in #1? If not, why not?