razvoj intelektualne svojine

8/13/2019 Razvoj intelektualne svojine

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The Growth of Intellectual Property:

A History of the Ownership of Ideas in the United States

William W. isher III*

forthcomin! inEigentumskulturen im Vergleich"#andenhoec$ % &uprecht' ()))*

In 1987, Taco Cabana, a chain of Mexican restaurants in Houston, Texas, brought suitagainst Two Pesos, a rival chain, claiming that Two Pesos ha eliberatel! co"ie TacoCabana#s $cor% & combination of nonfunctional features '' overhea garage oors useto se"arate a "atio area from the ining room, a bright color scheme intene to create a(festive atmos"here,( a istinctive roof esign, etc% '' lent a istinctive overall image toeach of its restaurants, Taco Cabana argue% Two Pesos ha acte wrongfull! ina""ro"riating that image without "ermission% )ive !ears an several court rulings later,Taco Cabana "revaile% Two Pesos was re*uire to "a! several million ollars inamages an alter the a""earance of its restaurants%n1

+ast !ear, a grou" of intellectual'"ro"ert! law!ers argue in an article in the ational+aw -ournal that athletic maneuvers coul an shoul be "atente% & metho (for sailingan &merica#s Cu" !acht wherein the !acht sails 1. egrees closer to the win, for high'/um"ing higher or for s0iing ownhill 1. "ercent faster,# the! claime, coul easil! beclassifie as a (useful "rocess( within the meaning of the feeral "atent statute% Ifnonobvious an novel, such a techni*ue shoul *ualif! for "atent "rotection% &fter all, ifone can "atent a new surgical "roceure, wh! not the )osber! )lo" n2The chances thatthe courts would adopt this proposal are not great, but the argument is colorable.

2here i these claims come from How i it come to "ass that, in the 3nite 4tates,

one can now own the $cor of a restaurant, an law!ers argue seriousl! about exclusiverights to athletic moves This essa! see0s to answer those *uestions%

I.

The fiel of law in which such claims arise has recentl! come to be 0nown as(intellectual "ro"ert!%( It encom"asses several, "artiall! overla""ing octrines% Co"!rightlaw "rotects (original forms of ex"ression( '' Magic Mountain, (4tar 2ars,( ()iler onthe 5oof%( Patent law "rotects inventions '' winsurfers, chemical "rocesses, geneticall!engineere mice% Traemar0 law "rotects wors an s!mbols that ientif! goos an

services '' (Mc6onals,( the istinctive sha"e of a )errari Testarosa% Trae'secret law"rotects information that a com"an! has trie but faile to conceal from com"etitors ''secret formulas for soft rin0s, confiential mar0eting strategies% The (right of "ublicit!("rotects celebrities# interests in their images an ientities%

The histor! of each of these octrines li0e the histories of most areas of the law isinvolute an iios!ncratic, but one overall tren is common to all ex"ansion% 2ith rare

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exce"tions, the set of entitlements create b! each of the octrines has grown steail! anramaticall! from the eighteenth centur! to the "resent%

A.

2ithin co"!right law, the most obvious axis along which this ex"ansion has occurre isuration% The original, 179. Co"!right &ct establishe a co"!right term of 1: !ears; ifthe author were still living at the en of that "erio, he coul renew the co"!right for anaitional 1: !ears% n3Over the next two centuries, Congress periodically added to thesetime periods. n4Most copyrights acquired today will last for the life of the author plus 50years, and Congress is seriously considering extending that term for another 20 years.

& less straightforwar but e*uall! im"ortant res"ect in which co"!right has grownconcerns the efinition of a co"!righte (wor0%( 3ntil the mile of the nineteenthcentur!, a co"!right owner en/o!e little more than "rotection against verbatim co"!ingof his or her language% In other wors, the (wor0( shiele b! the statute was the literal

text, nothing more% 4o, for exam"le, in 18eecher 4towe that a ?erman translation of Uncle Tom's Cabin infringe herco"!right%

>! the "ublication of Mrs% 4towe#s boo0, the creations of the genius animagination of the author have become as much "ublic "ro"ert! as thoseof Homer or Cervantes% % % % &ll her conce"tions an inventions ma! beuse an abuse b! imitators, "la!wrights an "oetasters% % % % @Herentitlements are limite toA the co"!right of her boo0; the exclusive rightto "rint, re"rint, an ven it, an those onl! can be calle infringers of herrights, or "irates of her "ro"ert!, who are guilt! of "rinting, "ublishing,

im"orting or vening with her license, (co"ies of her boo0%( & translationma!, in loose "hraseolog!, be calle a transcri"t or co"! of her thoughts orconce"tions, but in no correct sense can it be calle a co"! of her boo0%

Towar the en of the nineteenth centur!, this constricte view of an author#s rights cameuner increasing attac0% Bventuall! the courts, with Congress# encouragement, abanoneit in favor of the conce"t that the (wor0( "rotecte b! co"!right consists (in thesubstance, an not in the form alone% That which constitutes the essence an value of aliterar! com"osition, which re"resents the results of the author#s labor an learning, ma!be ca"able of ex"ression in more than one form of language ifferent from that of theoriginal% % % % @ThusA translation is not in substance a new wor0% It is a re"rouction in anew form of an existing one%( n6 This modern understanding confers upon copyrightowners many more entitlements than the right to prepare translations. Closeapproximation of the plot of a novel or play, preparation of a screenplay based on anovel, use of the characters from a movie or book to create an unauthorized sequel -- allthese are now understood to constitute infringement.

The 0ins of wor0s to which co"!right law ma! a""l! has also grown enormousl!% )orexam"le, in 188:, the 4u"reme Court conclue that "hotogra"hs coul be co"!righte%

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n7In 1971, Congress decided that musical recordings (not just musical compositions, butrecorded performances thereof) should be shielded from copying. n8Twenty years ago,computer software was added to the list of protectable works. n9The most recent majoraddition was architectural works. n10

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+i0e co"!right, "atent law was grauall! extene over the course of the 19th an .thcenturies to an increasingl! wie arra! of inventions% 4ome exam"les

Industrial Designs. In 18:, ho"ing to "rovie (encouragement to theecorative arts,( Congress extene the reach of the "atent statute to cover(new an original esigns for articles of manufacture%( The egree oforiginalit! emane b! the Patent Dffice an the courts beforerecogniEing a "atent of this sort has varie over the !ears, but recentl! awie arra! of (ornamental ob/ects( '' from e!eglass is"la! rac0s to

containers for is"ensing li*uis '' have been eeme "rotectable% n11

Plants.3ntil the earl! twentieth centur!, "lants were consiere "rouctsof nature an hence un"atentable% n12 The Plant Patent Act of 1930overrode this principle, extending a modified form of patent protection tonew varieties of asexually reproducing plants. n13In 1970, Congress wenteven further, reaching new and "distinct" sexually reproducing plantvarieties. n14

Surgical Procedures. 3ntil the 4econ 2orl 2ar, the Patent Dffice too0the "osition that (the methos or moes of treatment of "h!sicians of

certain iseases are not "atentable%( n15 In the 1950s, it abandoned thiscategorical rule, n16 but the continued wariness of the courts n17combined with doctors' qualms concerning the monopolization ofpotentially life-saving processes kept the number of such patents low. n18Recently, however, the rate has increased sharply. The Patent andTrademark Office now typically grants over a dozen medical procedurepatents each week. n19In 1996, Congress curtailed the use of such patents-- not by eliminating them, however, but rather by exempting physiciansand "health care entities" (e.g., nursing homes, hospitals, and medicalschools) from liability for infringing them. n20

Software.3ntil the 198.s, both the Patent Dffice an the courts resistethe "atenting of software "rograms, "rimaril! on the groun that the!constitute (mathematical algorithms( an thus un"atentable ("henomenaof nature%( n21In 1981, the United States Supreme Court signaled a slightweakening in this resolve, upholding the patent on a software program(embedded in a computer) that served to monitor continuously thetemperature inside a synthetic rubber mold. n22 Since that time, theFederal Circuit has adopted an increasingly receptive posture; today,

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virtually any software program (if novel, nonobvious, etc.) is patentable,so long as the applicant describes it as being programmed into a generalpurpose computer. n23The predictable result has been an enormous surgein software patent applications.

This "roliferation of the 0ins of "otentiall! "atentable inventions has been "arallele b!ex"ansion of the set of entitlements encom"asse b! a "atent% The octrine that bestexem"lifies that ex"ansion is the conce"t of (e*uivalents%( n24Ordinarily, the rights of apatent owner are defined, not by the scope of his invention, but by the language of his"claims"; a rival's product will infringe the patent if and only if it falls within the boundsof a valid claim. In the nineteenth century, rivals would sometimes take advantage of thisprinciple. By constructing products that differed in minor respects from patentees' claims,they sought to avoid liability. Toward the end of the century, the courts developed theequitable doctrine of "equivalents" to prevent such evasive maneuvers. n25Since thattime, four developments have transformed the doctrine into a powerful weapon in thehands of patentees. First, the courts have abandoned the notion that an "equivalents"

inquiry is only appropriate when there is evidence that the defendant has deliberatelycopied the plaintiff's invention or engaged in some other kind of fraud; now the doctrineis available in every case. n26Second, the formulas used by the courts to define the ambitof the doctrine have become more favorable to patentees; now plaintiffs need only showthat defendants' products are not "substantially" different from the patent's claims. n27Third, the increasingly common use of juries in patent cases has resulted in increasinglygenerous (to patentees) interpretation of the doctrine. n28Finally, courts have held thatthe doctrine of equivalents may be invoked by patentees even when the defendant'sproduct or activity only became possible as a result of new technology -- in other words,even if the defendant's product or activity could not have been foreseen at the time thepatent was granted. n29

2hat about the manner in which the Patent Dffice an courts have inter"rete ana""lie the stanar re*uirements of "atentabilit! '' novelt!, nonobviousness, utilit!,etc% Here the ramatic shift in favor of "atentees has been more recent% 5oughl!s"ea0ing, the nineteenth centur! was characteriEe b! ever more generous inter"retationof the statutor! criteria% Partl! as a result, "atents became im"ortant to man! com"aniesan inustries% n30Between the First and Second World Wars, however, the tide turned.Angered by anticompetitive uses of patents by large companies, both the Patent Officeand the courts became substantially less willing to grant or uphold questionable patents.Beginning in the 1950s, the Patent Office became more generous, but the federal courtsvaried widely in their willingness to go along. The creation in 1982 of the Court ofAppeals for the Federal Circuit eliminated these variations. Equally importantly, the newcourt (as its advocates had foreseen) has been much more favorable to patentees --sharply lowering the bar of "nonobviousness" n31 and encouraging more generousdamage awards. n32

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It is in the area of traemar0 law that the ex"losion of intellectual "ro"ert! has been moststri0ing% The notion that a manufacturer who "laces on his goos a "articular mar0 can"revent others from using the same mar0 to sell similar goos first a""eare in &mericanlaw in the mile thir of the nineteenth centur!% n33For many years, however, the kindsof marks shielded by this principle were limited. Initially, for example, most courts (and

the leading commentator) insisted that, to be protected, a trademark had to include thename of the manufacturer. Arbitrary or fanciful names (e.g., "Balm of a ThousandFlowers" soap) did not qualify, n34nor did geographic names (referring to the place aproduct was manufactured). n35Gradually, these and other restrictions were lifted. Bythe end of the century, courts were willing to protect arbitrary names, symbols, andgeographic names provided that they had acquired "secondary meaning" (i.e., if in theminds of consumers they had come to be associated with particular products). n36Thenames of newspapers, hotels, and other businesses, previously protected only againstfraud, were also swept into the general category of trademarks. n37

In the twentieth centur!, the ex"ansion of the set of "rotectable ientifiers continue

a"ace '' most notabl! through the octrine of (trae ress%( The anteceents of thisoctrine lie in a few late nineteenth'centur! ecisions in which courts shiele, asa/uncts to traemar0s, (@tAhe "ac0age, case, or vessel in which the commoit! is "ut, if"re"are in a "eculiar or novel manner%( n38By the late twentieth century, they had gonemuch further, shielding against imitation such things as the uniforms of the cheerleadersfor the Dallas Cowboys football team and the layout and appearance of greeting cards.n39

The entitlements a manufacturer ac*uires through (ownershi"( of a traemar0 haveli0ewise grown enormousl!% Initiall!, onl! the use b! com"etitors of ientical mar0s or"ortions thereof was actionable% +ater, com"etitors were "revente from using mar0s

sufficientl! similar as to cause consumer confusion, a stanar the courts construe evermore generousl!% Most recentl!, traemar0 owners have been able to halt the use ofientical or similar mar0s b! noncom"etitors, on the groun that such usage woul(tarnish,( (blur,( or (ilute( the mar0% n40The geographic range of a trademark has alsoexpanded radically. Initially, trademark owners' entitlements were limited to theterritories in which they were actually selling or advertising their products. n41 Theadoption of the Lanham Act in 1946 allowed users of marks to establish "nationwideconstructive use" of their marks as of the date of their application for trademarkregistration. n42The Lanham Act (and its subsequent amendments) enlarged owners'rights in many other respects as well -- perhaps most importantly by establishing agenerous set of remedies for trademark infringement, including treble damages andattorneys' fees.

6uring the same "erio, &merican courts through common'law a/uication haveevelo"e several octrines ancillar! to traemar0 law% The most im"ortant of these is aline of ecisions initiate b! the 1918 case of International News Service v. AssociatedPress, in which the 4u"reme Court en/oine the efenant news organiEation froma""ro"riating information containe in the "laintiff#s news"a"er stories until such time asthe (commercial value( of that information ha ("asse awa!%( Courts in succeeing

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!ears iffere shar"l! on the merits of the (misa""ro"riation( octrine announce inINS%4ome '' most notabl!, the influential Court of &""eals for the 4econ Circuit '' haveone what the! coul to evae or limit it% n43Others, however, have enthusiasticallyextended it to a variety of circumstances arguably involving "piracy" of information. IntheDow Jonescase, for example, the Supreme Court of Illinois held that the Chicago

Board of Trade could not develop a stock index futures contract keyed to the "Dow JonesIndustrial Average," without first obtaining the permission of the company that hadoriginally created that famous market index.n44

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The final intellectual'"ro"ert! growth area is "erha"s less economicall! im"ortant thanco"!right, "atent, or traemar0 law, but has consierable cultural significance% In 19


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&merican colonies that became the 3nite 4tates e"ene heavil! on agriculture; nomore than ten "ercent of the wor0force of an! colon! was engage in manufacturing% n52Over the course of the nineteenth century, the economy became ever more dependentupon industry.n53During the twentieth century, industry has been gradually supplantedby information processing as the principal source of American jobs. The impact of this

familiar but fundamental change was an increase in the perceived need for intellectualproperty rights. During the colonial period, few people stood to gain from copyright orpatent protection; not surprisingly, few copyrights or patents were granted. n54Since thattime, the demand for intellectual-property protection has steadily increased.

& secon, relate long'term change was the transformation of the 3nite 4tates from anet consumer of intellectual "ro"ert! to a net "roucer% 3ntil a""roximatel! the mile ofthe nineteenth centur!, more &mericans ha an interest in ("irating( co"!righte or"atente materials "rouce b! foreigners than ha an interest in "rotecting co"!rights or"atents against ("irac!( b! foreigners% The shift in the (balance of trae( ha a"reictable effect on the stance ta0en b! the 3nite 4tates in international affairs% In the

earl! nineteenth centur! '' as Charles 6ic0ens learne to his isma! '' the &mericangovernment was eaf to the "leas of foreign authors that &merican "ublishers werere"rinting their wor0s without "ermission% n55In the late twentieth century, by contrast,the United States has become the world's most vigorous and effective champion ofstrengthened intellectual-property rights.n56Thus, for example, the American delegationsuccessfully took a very hard line in the negotiation of the TRIPS agreement, demandingthat other nations acquiesce in their generous version of patent and copyright laws. n57And software piracy in China has triggered a much sterner reaction from the UnitedStates than has widespread human-rights violations. n58

& thir economic evelo"ment that ha a "articularl! strong im"act on traemar0 law

was a ramatic increase uring the earl! twentieth centur! of the im"ortance ofavertising% The watershe was the 19.s% To be sure, manufacturers an retailers hause avertising before then% >ut a combination of circumstances uring the #.s le to asurge in avertising ex"enitures the "roliferation of national brans; manufacturers#ex"erimentation with avertising as a wa! of stabiliEing consumer emans an thusreucing investment ris0s; an increase reliance u"on ra"i "rouct st!le changes"romote b! avertising to stimulate consumers# thirst for their "roucts% (>! 198, forexam"le, the )or Moel T in basic blac0 ha become the Moel &, available in fourcolors an in seventeen bo! st!les, an to "romote the st!le changes, in oneexce"tionall! ex"ansive wee0 )or s"ent about F million on avertising%( n59By theend of the decade, approximately 3 percent of the national product ($3.4 billion) wasbeing devoted to advertising. n60Much of that money was devoted to establishing andmaintaining the reputation of trademarks and tradenames. For obvious reasons,manufacturers wished to prevent others from "free-riding" on their investments -- andsought strengthened trademark protection.

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To this "oint, the ex"ansion of intellectual'"ro"ert! rights woul seem reail!ex"lainable in functional terms% The law, it a""ears, evolve so as to serve the changing(nees( of the &merican econom!% Giewe from this angle, law seems to besu"erstructural '' its evelo"ment riven b! changes in the unerl!ing moe of"rouction an associate relations of "rouction% n61But this is not the end of the story.

To account fully for the development of intellectual-property law, one must also take intoaccount some cultural and ideological factors.

The first if not most im"ortant of these has been the urable an wies"rea "o"ularcommitment in the 3nite 4tates to a labor'esert theor! of "ro"ert!% The notioncommonl! associate b! acaemics with -ohn +oc0e that a "erson eserves to ownsomething that he or she has create through "rouctive labor has long ha consierablecurrenc! in &merica% n62This was perhaps more true in the nineteenth century thantoday, but social psychologists tell us that, even now, most Americans (as well as mostWestern Europeans) subscribe to the closely related "equity theory" of distributive justice-- the notion that each person who contributes to a collective enterprise deserves a reward

commensurate with the magnitude of his or her contribution to the enterprise. n63

4ince the late eighteenth centur!, such attitues have contribute to the willingness oflegislators an /uges first to establish an then to ex"an intellectual "ro"ert! rights%Thus, for exam"le, the committee that "ersuae the Continental Congress to recommento the states that the! ao"t co"!right laws /ustifie the "ro"osal "artl! on the groun that(nothing is more "ro"erl! a man#s own than the fruit of his stu!%( n64Similar statementsby other lawmakers may be found throughout American history. For example, in 1837Henry Clay argued that it is "incontestable" that "authors and inventors have, accordingto the practice among civilized nations, a property in their respective productions . . . ;and that this property should be protected as effectually as any other property is, by law,

follows as a legitimate consequence." n65More recently, Justice O'Connor justified hernarrow reading of the fair-use doctrine (which privileges certain sorts of nonpermissiveuses of copyrighted materials) on similar grounds: "The rights conferred by copyright aredesigned to assure contributors to the store of knowledge a fair return for their labors."n66

& secon, relate ieological current has been the wies"rea "o"ular sus"icion in the3nite 4tates of governmental involvement in the "rocess of ientif!ing an rewaringgoo wor0s of art an sociall! valuable inventions% This attitue cr!stalliEe later thanthe labor'esert theor! /ust iscusse% 3ntil the mile of the nineteenth centur!,&mericans were remar0abl! rece"tive to the notion that governments coul an shoulavance the "ublic interest b! ientif!ing an encouraging sociall! valuable ventures ofall sorts% This general is"osition ha man! manifestations in earl! &merican legal aneconomic histor! '' incluing, for instance selective grants of cor"orate charters toenter"rises that, in the legislators# view, "romise to reoun to the "ublic welfare; (Mill&cts,( which em"owere lanowners who wishe to install mills on streams runningthrough their "ro"ert! to buil ams that flooe their neighbor#s "ro"ert! "rovie the!"ai com"ensation; an generous elegations b! state legislatures of the "ower ofeminent omain to "rivate railroas% n67 This same general mercantilist sentiment

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underlay several proposals early in American history that inventors be rewarded, not withpatents, but with public funds. For example, in 1787, Tench Coxe proposed the followingscheme to the Pennsylvania Society for the Encouragement of Manufactures and theUseful Arts:

Premiums for useful inventions an im"rovements, whether foreign or&merican, for the best ex"eriments in an! un0nown matter, an for thelargest *uantit! of an! valuable raw material, must have an excellenteffect% The! woul assist the efforts of inustr!, an hol out the nobleincentive of honourable istinction to merit an genius% The state mightwith great convenience enable an enlightene societ!, establishe for the"ur"ose, to offer liberal rewars in lan for a number of ob/ects of thisnature% Dur funs of that 0in are consierable, an almost ormant% n68

The first raft of what ultimatel! became the intellectual'"ro"ert! clause of theConstitution similarl! incor"orate a s!stem of governmental awars an subsiies% n69

Edward Walterscheid argues convincingly that this approach was ultimately rejected, notbecause of principled opposition to governmental involvement in the identification ofworthy inventions, but because it was deemed too expensive. n70

By the late nineteenth century, however, this receptivity to direct governmentalsupervision of inventive activity had been eroded by the complex of attitudes commonlyknown as classical liberalism -- including, most importantly, the notion that the publicand private spheres (the "state" and "civil society") were and should be distinct,combined with a general distrust of governmental tinkering with the market. In thealtered ideological climate, intellectual-property rights were more palatable thangovernmental prizes as a way of stimulating creativity. To modern lawyers, both systems

plainly involve governmental adjustments of the market; to that extent, both entaildepartures from an ideal of laissez-faire. But the intervention by government was (and is)less apparent when it consists of conferring property rights on classes of authors andinventors than when it consists of the identification and support of particular persons.

Classical liberalism has also contribute in man! more etaile wa!s to the ex"ansion ofintellectual'"ro"ert! rights% The most im"ortant, "robabl!, has been the strongcommitment of both courts an legislators when aministering the co"!right laws to the"rinci"le of aesthetic relativism% 3nwilling to ifferentiate between goo an ba art orart an avertising, we exten the umbrella of co"!right "rotection to ever!thing '' frombrilliant bursts of creativit! to at least in theor! minor eviations from existing wor0scause b! a (co"!ist#s ba e!esight or efective musculature, or a shoc0 cause b! cla"of thuner%( n71Residues of classical liberalism also, incidentally, continue to shapemany other, related aspects of American politics and law -- for instance, the distressinglylow levels of public funding for the arts in the United States (compared, for instance, tomost countries in Western Europe), and the apparently successful recent efforts ofconservative Republican congressmen to stunt the National Endowment for the Arts.

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& thir ieological current that ha a "articularl! "owerful im"act on &merican co"!rightlaw was the "o"ulariEation an then "ersistence of a (romantic conce"tion of authorshi"%(& great eal of recent scholarshi" has been evote to the ex"loration of this theme% n72In brief, the story goes as follows: Until the eighteenth century, neither popular nor eliteculture in Europe or North American placed a high value on the individual artist or

author. Tradition, skill, and connection with the past were more important thanoriginality. n73The convergence of several forces (Romanticism, the political theory ofpossessive individualism, the self-interest of English book publishers, the scheming ofFrench monarchists, etc.) precipitated a widespread repudiation of this attitude toward artin favor of a celebration of individual artistic genius. Wordsworth captured the new ideal:

?enius is the introuction of a new element into the intellectual universeor, if that be not allowe, it is the a""lication of "owers to ob/ects onwhich the! ha not before been exercise, or the em"lo!ment of them insuch a manner as to "rouce effects hitherto un0nown% n74

Co"!right law in Buro"e an the 3nite 4tates grew out of '' an to some extent hel"e"o"ulariEe '' this romantic vision% Combine with the general labor'esert theor!iscusse above, it hel"e su""ort the notion that an artist eserves to own hiscreations% &n, as Peter -asEi has shown, it hel"e sha"e m!ria s"ecific octrines inco"!right law '' usuall! though not invariabl! in a fashion that ex"ane theentitlements of co"!right owners% & few exam"les the elaboration of a generousconce"tion of a co"!righte (wor0( an a concomitant ex"ansion of the rights ofco"!right owners; the extension of co"!right "rotection to "hotogra"hs; an the curiouswa! in which the (wor0'for'hire( octrine has evolve in the 3nite 4tates% n75

2hat is most stri0ing '' an to contem"orar! scholars, most istressing '' about this

ieological current is its continue strength% The image of the lone author wor0ing in hergarret is almost wholl! obsolete% Toa!, most writing inee, most creativit! of all sortsis collaborative% B*uall! im"ortantl!, the extent to which ever! creator e"ens u"on anincor"orates into her wor0 the creations of her "reecessors is becoming ever moreobvious% et &merican lawma0ers cling stubbornl! to the romantic vision% n76There arefew signs that it is losing its grip on the law. Indeed, the recent introduction intoAmerican copyright law of (a variant of) the Continental theory of moral rights suggeststhat its power may be waxing, not waning. n77

+ess well stuie than the romantic image of the author '' but e*uall! im"ortant to theoverall sha"e of &merican intellectual "ro"ert! law '' is an analogous heroic image of theinventor% &s eith &o0i observes, this ieal has an even oler "eigree than the iea oforiginal authorshi"% ?roune in (the 5enaissance exaltation of the originar! humansub/ect as inventive genius, as emboie in +eonaro e Ginci#s wor0,( am"lifie b! the(Bnlightenment elevation of scientific geniuses such as 6escartes, +eibnitE, anewton,( the glowing image of the inventor was alrea! well establishe in 2esternculture when &merican "atent law began to ta0e sha"e% n78In the United States, theattractiveness and importance of this image was reinforced by at least three culturalforces: the frontier ethic, which envisions man as pitted against nature, harnessing it

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through ingenuity as much as through force; n79 the associated "pastoral ideal,"celebrating the transformation of the wilderness into the garden; n80and the premiumplaced on social mobility, from which standpoint inventiveness is seen as an importantway in which a talented youth can achieve wealth and fame. n81The net result is thereverence with which Americans have treated -- and continue to treat -- our major

inventors: Thomas Edison, Alexander Graham Bell, the Wright Brothers, Bill Gates, etc.

The im"act of this imager! on "atent law has been enormous% ot alwa!s has it o"erateto increase the availabilit! of "atents% )or exam"le, the establishment an sometimessevere a""lication of the re*uirement that, to be "atentable, an invention must be(nonobvious( to a "erson having orinar! s0ill in the "ertinent art n82is plainly traceableto the heroic image of the inventor. What we wish to reward are "flashes of creativegenius,"n83not mere works of craftsmanship. The net effect of this orientation has beento constrict rather than to expand the zone of creations covered by patents. n84But, ingeneral, the high regard in which inventors have been held in the United States hasworked to support and expand the patent system.

+i0e the romantic ieal of authorshi", the image of the inventor has "rove istressingl!urable% )or exam"le, eith &o0i observes that the ebate over the "atenting of 6&fragments from the Human ?enome Pro/ect was "ermeate with heroic imager!researchers analogiEe to +ewis J Clar0; the "ro/ect as a whole li0ene to the search forthe Hol! ?rail, etc% n85The rhetoric persists (and continues to shaping patent policy)despite the ubiquity of collaborative research and development (of which the HumanGenome Project is a prime example) -- to which the image of the lone genius seemssingularly inapt.

,.

The two forces /ust reviewe '' economic nees an ieological "ressures '' have beenreinforce in the 3nite 4tates b! a recurring "olitical !namic% The avocates ofincrease intellectual "ro"ert! "rotection have consiste, for the most "art, of creators,their surrogates "ublishers, movie stuios, etc%, businesses intereste in "rotecting theirtraemar0s, "atent "ortfolios, or trae secrets, an celebrities eager to ca"italiEe on theirre"utations% Most have ha strong financial interests in statutor! reform that woul"rotect them against non"ermissive use of their ("ro"ert!%( The interests of "ersons whowoul benefit from reuce intellectual'"ro"ert! "rotection, b! contrast, have tene tobe more ilute% The largest an most im"ortant such grou" consists of consumers '' eachof whom t!"icall! has ha onl! a small sta0e in the content of the "ertinent laws% Theresult is that lobb!ing efforts have re"eatel! been biase in favor of the ex"ansion ofintellectual "ro"ert!% Bnthusiasts have mae themselves hear, while s0e"tics have beenlargel! silent%

There are man! exam"les of this !namic in the course of &merican histor!% & *uaint but"erha"s im"ortant earl! instance involves the efforts of -ohn )itch, one of the "ersonswho claime to have invente the steamboat, to obtain "atent "rotection for his invention%6uring the wee0 of &ugust ., 1787, )itch invite at least three an "erha"s man! more

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n86) members of the Constitutional Convention to see a demonstration (and perhaps toride uponn87) his invention. What exactly was discussed during this demonstration wewill never know, but the chances are good that he pressed on the delegates the need forfirmer, national patent laws. Fitch's timing was either shrewd or fortuitous. On August18, the first draft of what ultimately became the intellectual-property clause had first been

presented to the delegates. n88By September 5, they had settled on the language that wasultimately incorporated into the Constitution. n89

Man! exam"les of exertion of the same 0in of "ressure can be foun in the legislativehistor! of the 197K general reform of the Co"!right &ct% &s -essica +itman has shown,the Congressional committees an subcommittees charge with overseeing that reformt!"icall! refuse to raft statutor! language themselves% Instea, the! force there"resentatives of organiEe interest grou"s that ha sta0es in the content of the statute tonegotiate com"romises% Man! of the crucial "rovisions in the act incor"orate verbatimthe fruits of those eals% Thus, for exam"le, (@tAhe woring of the fair use "rovision, anthe language of the committee re"orts accom"an!ing it, emerge from a har fought

com"romise involving "rotracte, own'to'the'wire negotiations among re"resentativesof authors, com"osers, "ublishers, music "ublishers, an eucational institutions%( n90Similar compromises provided the content for "the statute's treatment of cable television,library photocopying, phonorecord publishing, jukebox operation, and the manufacturingclause." n91This is not to suggest that the parties to these negotiations were always inaccord. On the contrary, the "affected interests" often disagreed sharply, and many of thecompromises were achieved only after protracted discussions and much cajolery by thepertinent Congressional committees. n92 The point, rather, is that the negotiationsprivileged groups with interests sufficiently strong and concentrated to have formalrepresentatives. Very rarely was the public -- the consumers of intellectual products --represented in any way. And Congress itself -- whose job, one might think, is precisely to

protect the public's interest -- failed to do so.

The exam"les coul be multi"lie, n93but the general proposition is clear enough: Thesharply different densities of the "interests" on opposite sides of intellectual-propertyissues, combined with the important role played by organized interest groups inAmerican politics, means that, more often than not, the proponents of expandedentitlements will win out.

-.

The fourth an final force that has contribute to the growth of intellectual'"ro"ert!rights consists of a graual shift in the terminolog! use b! law!ers to escribe aniscuss those rights '' in a wor, the ("ro"ertiEation( of the fiel% In the eighteenthcentur!, law!ers an "oliticians were more li0el! to refer to "atents an co"!rights as(mono"olies( than the! were to refer to them as forms of ("ro"ert!%( The "o"ularit! ofthe former term erive "artl! from the historical origins of "atent law In Bnglan,"atents in the moern sense originate in section K of the 1K= 4tatute on Mono"olies,which both escribe "atents as (mono"olies( an exem"te them from the general banon ro!al grants of such rights% n94But the currency of the term also derived partly from

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-- and helped to reinforce -- a substantive position: like other "monopolies," patents andcopyrights were dangerous devices that should be deployed only when absolutelynecessary to advance some clear public interest. Thomas Jefferson was the mostprominent adherent of this view, but many others shared his attitude to varying degrees.n95

?rauall! over the course of &merican histor!, this iscourse was su""lante b! onecentere on the notion that rights to control the use an issemination of information areforms of ("ro"ert!%( This transition can be seen most clearl! in the context of traemar0law% 3ntil the mile of the nineteenth centur!, legal "rotection of traemar0s was/ustifie on the basis of the nee to "rotect innocent sellers against (frau%( n96In otherwords, the law in this field was understood to be a branch of (what was gradually comingto be called) tort law, n97not property law. In the 1849 case ofAmoskeag ManufacturingCompany v. Spear, a sharply different language appears: "the doctrine of an exclusiveproperty in trade-marks has prevailed from the time of the year books." n98This newconception did not immediately sweep the field; for many years, tort and property

concepts coexisted uneasily in the many subdivisions of the law of trademarks and unfaircompetition. But slowly, property discourse took precedence. n99

In the earl! twentieth centur!, an influential grou" of commentators lent their ai to thistren% +e b! )ran0 4chechter, these scholars argue that the true basis of traemar0"rotection was a "ro"ert! interest in the mar0 itself or in the goowill of which the mar0was a vehicle, an that the law shoul recogniEe an enforce that "ro"ert! right morefull! than it alrea! i% n100Oliver Wendell Holmes and a few like-minded scholarsdisagreed, but they were clearly in the minority. n101

)raming arguments in terms of "ro"ert! rights became increasingl! common in other

octrinal fiels as well% )or exam"le, in the 191 case of is!er v. Star, the ew or0Court of &""eals rule that the comic'stri" characters, Mutt an -eff, coul not be useb! the efenant news"a"er without the "ermission of the creator of the characters% n102The court founded its judgment on the general proposition: "Any civil right not unlawfulin itself nor against public policy, that has acquired a pecuniary value becomes a propertyright that is entitled to protection as such." n103More recently a federal district court inNew York held that the digital sampling by a rap artist of a small portion of the classicsong, "Alone Again, Naturally," constituted copyright infringement. The court opened itsopinion justifying this outcome with the statement: "'Thou shalt not steal' has been anadmonition followed since the dawn of civilization." n104

&nother, more general manifestation of the same tren has been the growing "ower of the"hrase (intellectual "ro"ert!%( >efore the 4econ 2orl 2ar, use of the "hrase asshorthan for co"!rights, "atents, traemar0s, an relate entitlements was rare% 4incethat time, it has become steail! more common% n105Today, it is the standard way forlawyers and law teachers to refer to the field.

2h! oes the "o"ularit! of the term matter The answer '' as the +egal 5ealistsrecogniEe long ago '' is that legal iscourse has "ower% 4"ecificall!, the use of the term

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("ro"ert!( to escribe co"!rights, "atents, traemar0s, etc% conve!s the im"ression thatthe! are funamentall! (li0e( interests in lan or tangible "ersonal "ro"ert! '' an shoulbe "rotecte with the same generous "ano"l! of remeies% )elix Cohen the mostinsightful of the 5ealists "ut the "oint forcefull!

There was once a theor! that the law of trae mar0s an traenames wasan attem"t to "rotect the consumer against the ("assing off( of inferiorgoos uner misleaing labels% Increasingl! the courts have e"arte froman! such theor! an have come to view this branch of law as a "rotectionof "ro"ert! rights in ivers economicall! valuable sale evices% In"ractice, in/unctive relief is being extene toa! to realms where noactual anger of confusion to the consumer is "resent, an this extensionhas been vigorousl! su""orte an encourage b! leaing writers in thefiel% Conceivabl! this extension might be /ustifie b! a emonstrationthat "rivatel! controlle sales evices serve as a "s!chologic base for the"ower of business mono"olies, an that such mono"olies are sociall!

valuable in moern civiliEation% >ut no such line of argument has everbeen "ut forwar b! courts or scholars avocating increase legal"rotection of trae names an similar evices% % % % Courts an scholars,therefore, have ta0en refuge in a vicious circle to which no obviousl!extra'legal facts can gain amittance% The current legal arguments runsDne who b! the ingenuit! of his avertising or the *ualit! of his "roucthas inuce consumer res"onsiveness to a "articular name, s!mbol, formof "ac0aging, etc%, has thereb! create a thing of value, a thing of value is"ro"ert!; the creator of "ro"ert! is entitle to "rotection against thir"arties who see0 to e"rive him of his "ro"ert!% % % % The vicious circleinherent in this reasoning is "lain% It "ur"orts to base legal "rotection u"on

economic value, when, as a matter of actual fact, the economic value of asales evice e"ens u"on the extent to which it will be legall! "rotecte% %% % The circularit! of legal reasoning in the whole fiel of unfaircom"etition is veile b! the (thingification( of "ro"ert!% n106

5egrettabl!, the "leas b! Cohen an a few others that /uges /ettison the conce"t of("ro"ert!( an fran0l! confront the "ublic "olic! im"lications of "rotecting certain 0insof information fell largel! on eaf ears% The ("ro"ertiEation( of the fiel continue '' anis now well'nigh com"lete%

III.

The various circumstances an forces that have contribute to the "roliferation ofintellectual'"ro"ert! rights have reinforce one another% Here are a few exam"les of this!namic

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The emergence uring the earl! twentieth centur! of the &merican film inustr! soongave rise to a shrew an well'fune trae organiEation, the Motion Picture &ssociationof &merica% n107In amicus briefs in important cases, in lobbying before Congress, andin its statements to the public, the MPAA has consistently advocated strong protection ofintellectual-property rights. n108 In framing its presentations, the association has

capitalized on lawmakers' receptivity to the labor-desert theory as well as their awarenessof the position of the United States as the world's largest producer of films. n109Thisstrategy has been highly effective; with remarkable frequency, the positions theassociation has supported have prevailed. n110Power begets power, of course. Thesedoctrinal reforms have further strengthened the industry, lending the MPAA even moreauthority.

The recentl! ao"te feeral anti'ilution statute, which shiels (famous( traemar0sfrom activities that (tarnish,( (is"arage,( or (blur( them, grew out of a similarintersection of forces% Manufacturers of "roucts sol uner famous labels com"laine toCongress that the "rotection the! en/o!e from state anti'ilution statutes was uneven;

too often, the! insiste, manufacturers of unrelate "roucts were able to (freerie( onthe re"utations of famous brans b! using confusingl! similar mar0s% n111It should beunlawful, they insisted, to manufacture "DUPONT shoes, BUICK aspirin, [or] KODAKpianos." n112Why? If consumers are not misled concerning the source of the products,why exactly is it important to prohibit such activities? The manufacturers offered tworeasons: (1) they had invested time and effort in cultivating these famous marks and thusdeserved legal protection; and (2) other countries already had such prohibitions and itwas important that the United States not lag behind any nation in the strength of itsintellectual-property protections. In the absence of any organized resistance fromconsumers, these arguments prevailed. n113In short, the combination of a strong interestgroup, largely unopposed in the lobbying process, able to draw effectively upon the

labor-desert theory and the presumptive legitimacy of its members' "property" rights,secured yet another extension of the law.

The ubi*uit! of such s!nerg! means that evelo"ing a strateg! for halting the trenescribe in this article will be ifficult% ot im"ossible% The fate of the (2hite Pa"er(shows that it is "ossible at least to slow the growth of intellectual "ro"ert! rights%5elease in 199< b! Presient Clinton#s Information Infrastructure Tas0 )orce, the 2hitePa"er recommene a variet! of a/ustments of co"!right law, all esigne to increasethe abilit! of co"!right owners to control uses of their wor0s on the internet% n114Thoserecommendations were quickly embodied in proposed legislation, which, in the absenceof organized opposition, initially seemed assured of passage. To the surprise of manyobservers, the legislative initiative failed. Crucial to that failure was a publicity andlobbying campaign waged by a miscellaneous group of scholars, educators, and public-interest activists. n115 In the face of this outpouring of criticism (during an electionyear), the Congressional committees decided not to proceed. The victory may have beenshort-lived; Bruce Lehman, the principal architect and proponent of the White Paper, willlikely succeed in securing most (albeit not all) of his reforms through amendments to theBerne Convention. But the tide was turned at least briefly.

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https://cyber.law.harvard.edu/property99/history.html#n107https://cyber.law.harvard.edu/property99/history.html#n108https://cyber.law.harvard.edu/property99/history.html#n109https://cyber.law.harvard.edu/property99/history.html#n109https://cyber.law.harvard.edu/property99/history.html#n110https://cyber.law.harvard.edu/property99/history.html#n111https://cyber.law.harvard.edu/property99/history.html#n112https://cyber.law.harvard.edu/property99/history.html#n113https://cyber.law.harvard.edu/property99/history.html#n114https://cyber.law.harvard.edu/property99/history.html#n114https://cyber.law.harvard.edu/property99/history.html#n115https://cyber.law.harvard.edu/property99/history.html#n115https://cyber.law.harvard.edu/property99/history.html#n107https://cyber.law.harvard.edu/property99/history.html#n108https://cyber.law.harvard.edu/property99/history.html#n109https://cyber.law.harvard.edu/property99/history.html#n110https://cyber.law.harvard.edu/property99/history.html#n111https://cyber.law.harvard.edu/property99/history.html#n112https://cyber.law.harvard.edu/property99/history.html#n113https://cyber.law.harvard.edu/property99/history.html#n114https://cyber.law.harvard.edu/property99/history.html#n115


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Im"ortant lessons can be gleane from this e"isoe% >ut the o""onents of the growth ofintellectual "ro"ert! shoul not be overl! o"timistic% & mutuall! reinforcing combinationof economic, ieological, "olitical, an iscursive conitions ma0es further ex"ansion ofthese entitlements li0el!%

otes

LProfessor of +aw, Harvar 3niversit!% The research assistance of &lexi +ahav hel"e in"re"aring this article% The comments of 6iane 5osenfel an the "artici"ants in theConference on Pro"ert! +aw, Personhoo an CitiEenshi", hel at the )reie 3niversitt>erlin in &"ril 1997, hel"e in revising it%

(4ee Two Pesos" Inc. v. Taco Cabana" Inc%, oxes% 4houl thePatent Dffice Protect Their #Inventions#(#egal Times&ugust 19, 199K, 4=%

04ee Co"!right &ct of 179., ch% 1


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(7>efore 199., architectural wor0s were not shiele b! co"!right law% &rchitectural"lans were "rotecte, but onl! in the narrow sense that the! coul not be co"ie without"ermission% If a builer lawfull! obtaine a set of blue"rints for a builing or eterminehow to buil it without blue"rints, he was free to buil an ientical structure% & 199.statute catal!Ee b! the &merican ratification of the >erne Convention extene

co"!right "rotection to (the esign of a builing as emboie in an! tangible meium ofex"ression( an mae clear that the builing itself constitute such a (meium ofx"ression%( The u"shot is that, as long as a builing contains original esign elements thatare not functionall! re*uire, its (overall sha"e( ma! not be imitate without "ermission%&mirers ma! "hotogra"h, raw, or "aint the builing as long as it is (visible from a"ublic "lace( but cannot buil an ientical structure or even it seems a scale moel ofit%

((4ee 6onal 4% Chisum,Patents 199, 118.ff @chec0A%

(/4ee+, arte #atimer, 1889 Commn% 6ec% 1= 1889%

(0=< 3%4%C% secs% 1K1'1K:%

(1Plant Gariet! Protection &ct, 7 3%4%C% NN =1'% &""% 19enson5evisite The Case &gainst Patent Protection for &lgorithms an Dther Com"uter'5elate Inventions,(+mor( #aw $ournal=9 199. 1.


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/04ee -ulie B% Cohen, (5everse Bngineering an the 5ise of Blectronic GigilantismIntellectual Pro"ert! Im"lications of +oc0'Dut Programs,( Sout!ern California #aw%eviewK8 199


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01 4eeetridge v. -ells, : &bb% Pr% 1:: %% 4u"er% Ct% 18


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16Midler v. ord Motor Co%, 8:9 )% :K. 9th Cir% 1988; Midler v. oung 8%ubicam" Inc%, os% 9.'rownlee, su"ra note , at 7.%

37Ibid%

3(Cf% arl Marx, T!e Criti?ue of Political +conom(18


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30)or a s!m"athetic "resentation of this theor!, see -oel )einberg, Social P!iloso!(11:'1< 197=% )or ocumentation of the "o"ularit! of this theor! among &mericans an2estern Buro"eans, see &ams J )reeman, (B*uit! Theor! 5evisite Comments an&nnotate >ibliogra"h!,( in 9 Advances in +,erimental Social Ps(c!olog( +%>er0owitE J B% 2alster es% 197K, :=, :7':9; Morton 6eutch, Distributive $ustice1 A

Social Ps(c!ological Persective198ruce 2% >ugbee, )enesis of American Patent and Co(rig!t #aw 19K7, 11=%4imilar sentiments seem to have influence the various state legislatures in com"l!ingwith this recommenation% )or exam"le, the first Massachusetts co"!right statute wasgroune in the following, com"osite /ustification (2hereas the Im"rovement ofnowlege, the Progress of CiviliEation, the "ublic 2eal of the Communit!, an the&vancement of Human Ha""iness, greatl! e"en on the Bfforts of learne aningenious Persons in the various &rts an 4ciences &s the "rinci"al Bncouragement suchPersons can have to ma0e great an beneficial Bxertions of this ature must exist in thelegal 4ecurit! of the )ruits of their 4tu! an Inustr! to themselves; an as such

4ecurit! is one of the natural 5ights of all Men, there being no Pro"ert! more "eculiarl! aMan#s own than that which is "rouce b! the +abour of his Min%(Ibid%, 11:%

3;5e"ort of Henr! Cla!, submitte with 4% =, :th Cong%, 4ess% 1:8 18=7,re"rinte in T!erman, (The Bconomic 5ationale for Co"!right Protection for Publishe>oo0s & 5e"l! to Professor >re!er,( UC#A #aw %eview18 1971, 11.., 11.. n% =%

33/arer 8 %ow v. Nation +nterrises, :71 3%4%


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/4ee, e%g%, Martha 2oomansee, The ?enius an the Co"!right Bconomic an +egalConitions of the Bmergence of the (&uthor,( +ig!teent!0Centur( Studies 17 198::o!le, su"ra note , ch"t% K; >ernar Belman, #A $ournal of t!e #aw and Arts 18 99:191, 1


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61 4ee Monroe Price J Malla Polloc0, (The &uthor in Co"!right otes for the+iterar! Critic,( Cardo:o Arts 8 +ntertainment #aw $ournal1. 199, 7.=, 7.8%

6;&o0i, su"ra note , ""% 1='1:%

63 In his /ournal, )itch suggests that nearl! all of the elegates attene theemonstration%

6&ccounts iffer concerning how man!, if an!, of the elegates actuall! roe on theboat%

66The text of that first raft is set forth in note , su"ra%

6) The incient an its im"lications are carefull! iscusse in 2alterschei, su"ranote , ""% :1':=%

)7-essica 6% +itman, (Co"!right, Com"romise, &n +egislative Histor!,( Cornell #.%ev% 7 1987 8


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(77 4ee )ran0 4chechter, T!e /istorical oundations of t!e #aw %elating toTrademar&s19ariet(&ugust =, 199, Gol% =:8, o% , "% 18%

24


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(((4ee, for exam"le, the statement of -ames % >aughman, &ssistant ?eneral Counselof Cam"bell 4ou" Co%, in the subcommittee hearings on the bill% Mari ProtocolIm"lementation &ct an )eeral Traemar0 6ilution &ct of 199efore the 4ubcomm% on Courts an Intellectual Pro"ert! of the HouseComm% on the -uiciar!, 1.:th Cong% 1: 199

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