Symposium: Intergenerational Equity and Intellectual Property
On November 12–13, 2010, the Wisconsin Law Review hosted a symposium on the topic of “Intergenerational Equity and Intellectual Property.” The following articles are some of the presentations made by leading scholars working in the field of intellectual property. As an organizer of the Symposium, I present here some thoughts to provide context for the Symposium and following papers.
My goal in organizing the Symposium reflects my broader professional work in intellectual property and specifically an interest in developing a richer language with which to address the normative goals of intellectual property policy.
Margaret Jane Radin
It is my pleasure to begin this Symposium on intellectual property and intergenerational justice with my congratulations to the organizers and to the Wisconsin Law Review for choosing such an important, timely, and fascinating topic. I take my assignment here to be to introduce the kinds of difficulties posed by our prevalent ways of looking at justice when we attempt to apply these theories intergenerationally to intellectual property regimes.
Brett Frischmann & Mark P. McKenna
The Intellectual Property Clause of the U.S. Constitution identifies “Progress of Science and useful Arts” as the ends served by exclusive rights to writings and discoveries. Courts and scholars alike overwhelmingly have conceived of these ends in utilitarian terms, seeking more and better inventions and works of authorship. As a consequence of this framing, intellectual property (IP) law relies almost entirely on the market as the mechanism for achieving “Progress,” and we turn primarily to economics to evaluate and measure that Progress. In this Essay, we lay the groundwork for a broader understanding of the goals of IP law in the United States, particularly by arguing that there is room for a normative commitment to intergenerational justice.
First, we argue that the normative basis for IP laws need not be utilitarianism. The Constitution does not require that we conceive of IP in utilitarian terms or that we aim only to promote efficiency or maximize value. To the contrary, the IP Clause leaves open a number of ways to conceive of Progress. Courts’ and scholars’ overwhelming acceptance of the utilitarian approach reflects nothing more than a modern policy choice, one made without much, if any, deliberation.
Julie E. Cohen
Everything we know about creativity suggests that copyright plays very little role in motivating creative work. In the contemporary information society, the purpose of copyright is to enable the provision of capital and organization so that creative work may be exploited. This reframing has four important consequences for debates about copyright law and policy.
Legal Traditionalism, Creative Destruction, and the Role of Media Law in the Intergenerational Social Contract
Anuj C. Desai
I want to start with a point that I hope won’t be controversial: the concept of intergenerational equity necessarily entails thinking about the future. Thought about in those terms, the topic of this panel, “Media and Speaking to the Future,” is obviously, and inherently, futureoriented. How should we think about the role of the media as it relates to subsequent generations, our descendents?
I’d like, however, to shift our focus to the past. While our topic is inherently future-oriented, we are lawyers trained in the common-law tradition and are thus almost necessarily rooted in the past. In my brief remarks here, I will argue that there is an interesting tension between thinking about intergenerational equity and new media through a standard future-oriented lens and thinking about it through the lens of the common law, which of course continues to pervade much of our thinking about law in the American system.
Knowledge is sticky because it adheres to people along social routes, lodged within relational and collective modalities, as well as through copyright’s proverbial fixed works that can be transacted more freely. Sticky knowledge may in fact constitute a much larger body of knowledge than we usually acknowledge in intellectual property and may intersect with copyright in unexpected ways. This Article delves into sticky knowledge, which has been referenced often outside of intellectual property and sometimes within the laws of patents and trade secrets but almost not at all within copyright law. Under what circumstances will sticky knowledge encourage robust knowledge transmission—or copyright’s goal of “encouragement of learning”? Understanding the scope and reach of this kind of knowledge may point to optimal means to encourage knowledge spillovers and reliability.
Deven R. Desai
Copyright law operates under a hidden assumption: that copyright after death is the same as copyright during life. In the United States, the duration of copyright is the author’s life plus seventy years. In debates over copyright’s duration, those in favor of longer terms and even those in favor of shorter ones have treated pre- and post-death copyright as equal. The law, as well as the current discourse about copyright, merely focuses on time. In this Article, Professor Deven Desai critiques the post-mortem assumption—that the consequences of copyright protection during the creator’s life are the same as after the creator’s death.
While we have many accounts of the rise of the idea of Romantic authorship and its impact on copyright law since the eighteenth century, we do not yet have a persuasive narrative about how U.S. copyright law came to treat Hollywood directors as a special category of artistic geniuses. Indeed, we still need to recognize that directors have historically been given greater protection than their counterparts in other media. It is no coincidence that the majority of U.S. cases involving the potential for moral rights have involved films and filmmakers. This expanded protection for Hollywood directors is a far stranger phenomenon than protections offered to novelists and playwrights.
Kara W. Swanson
This Article returns to the turn of the twentieth century to consider food and drug law as intellectual property law. Today, Americans are engaged in two separate debates about food and drugs, one centering on safety and the effectiveness of the Food and Drug Administration, and the other on patent law and questions of equity, pricing, and profits. Arguing both that early food and drug law was influenced by intellectual property concerns and that the separation of intellectual property policy from federal food and drug regulation was neither inevitable nor inconsequential, this Article uses an historical perspective to understand the separation of these debates and to consider the opportunities that arise from considering food and drug law as intellectual property law.
Drawing on the history of science, technology, and medicine, this Article reexamines the early pure-food-and-drug movement as, in part, an anti-intellectual-property movement, concentrating on the problems of trade secrets in food and drug markets. It reviews the alliance between medical opponents to proprietary medicines and agricultural opponents to artificial foods that successfully supported early federal food and drug regulation, and the simultaneous failure of a medical campaign against drug patents. By considering the early twentieth-century shift in the drug market from reliance on trade secrets to reliance on patents in relationship to the recent move toward patents in agribusiness, this Article considers the lessons from history for a reunification of food and drug policy with intellectual property policy.
This Article assesses the treatment of plant genetic resources and crop diversity in light of theories of corrective and distributive justice (utilitarian and deontological) as well as relevant critiques of such theories. It reviews three periods in the treatment of plant genetic resources: the past, the present, and the future, noting that in the present era there are striking levels of vertical and horizontal concentration around the globe. Without denying the central role that intellectual property rights in plant genetic resources have played since the 1980s, this Article argues that we need a renewed regulatory focus on genetically engineered crops, the assertion and construction of a global antitrust regime, and a drastic rethinking of our labor-migration laws to account for the changes in global agriculture.
This Article explains that certain features of U.S. law, particularly copyright law, contributed to Google’s willingness to undertake the Google Book Search (GBS) project in the first place and later to its motivation to settle the lawsuit charging Google with copyright infringement for scanning in-copyright books. Approval of this settlement would achieve several copyright reforms that Congress might find difficult to accomplish, some of which would be in the public interest. This Article considers whether the quasi-legislative nature of the GBS settlement is merely an interesting side effect of the agreement or a reason in favor of or against approval of this settlement.