Volume 2011, No. 2


Symposium: Intergenerational Equity and Intellectual Property

In Memory of Keith Aoki

The Wisconsin Law Review would like to dedicate this issue to Keith Aoki, Professor at the UC-Davis School of Law (King Hall) and author and presenter in our 2011 Symposium, who passed away shortly before the issue was sent to the printer. Professor Aoki was an incredible scholar with a special place in his heart for the University of Wisconsin Law School, where he earned his LL.M. in 1993. Inspired by the enthusiasm he brought to his work, we are honored to have had the opportunity to work with him and are proud to publish one of his final articles.

Forward: Why Intergenerational Equity

Shubha Ghosh

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.

 At the surface, intellectual property law promotes progress, incentivizes invention and creation, supports innovation, leads to economic growth and development, and enriches the public domain. Depending on whom you ask, copyright, patent, trade secret, trademark, and related doctrines aid in reaching one or more of these goals. What these goals have in common is some notion of the future. Certainly all law aims to make a better world, but intellectual property has as its objective the dissemination of new products, ideas, services, and technologies that serve present and future generations. With concepts of prior art and public domain, intellectual property serves as a bridge between past and present with the artifacts of the present as tools for the future. With such bold claims, advocates of intellectual property reform in many countries move forward in promoting legal regimes that serve these noble visions. But with all this promise, one is left wondering: what does it mean? What is the future? This Symposium is an attempt to address these questions through the concept of intergenerational equity.

Property Longa, Vita Brevis

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.

Intergenerational Progress

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.

Copyright as Property in the Post-Industrial Economy: A Research Agenda

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.

First, abandoning the incentives-for-authors story requires us to develop a better understanding of how cultural progress emerges, and a more accurate account of how the economic incentives that copyright provides affect progress more generally. Second, an account of copyright as incentives for capital suggests a different approach to conceptualizing the kind of “property” that copyright represents. Copyright scholars habitually compare copyright to property in land, a conceptual move that passes over an important stage in the evolution of economic activity and associated economic rights. There are important benefits to be gained from comparing post-industrial, information property to industrial-era, corporate property, and copyright law more explicitly to corporate law. Specifically, copyright law in the post-industrial era works (or should work) to separate authorship from control of creative works so that a set of coordination problems closely associated with information resources can be solved. Third, comparing copyright more explicitly to corporate property suggests some different ways of thinking about problems of social welfare that so often bedevil regimes of property law. Fourth, comparing copyright more explicitly to corporate property foregrounds copyright law’s potential to function as a tool for ensuring accountability to the authors without whom the copyright system could not function.

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.

Sticky Knowledge and Copyright

Margaret Chon

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.

The Life and Death of Copyright

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.

He contends that the law must look beyond merely the span of time of copyright protection and that copyright’s extension after the author’s death is unjustifiable. He explores the historical, philosophical, and economic justifications for copyright after death and concludes that it should not matter in copyright policy.

Auteurism on Trial: Moral Rights and Films on Television

Peter Decherney

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.

While few books or plays are written entirely in cultural and physical isolation, studio filmmaking is a highly collaborative process that requires an elaborate financial and industrial infrastructure. Moreover, the vision of a film director as an individual creator is a myth that has been perpetuated largely by the studios. American auteur cinema began as a way of competing with the popularity of European and independent films in the 1960s, and by the 1980s it had become a fullblown marketing strategy, akin to the star system. In the United States, auteurism is a phenomenon that the Hollywood studios never fully lost control over, and studios have won just about every battle over film authorship. At moments in this battle for expanded rights, the studios may have briefly lost some control over some auteurs, like George Lucas and Steven Spielberg, but, in the end, the rise in protection for film directors has served largely to increase studio control over new media.

Food and Drug Law as Intellectual Property Law: Historical Reflections

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.

Food Forethought: Intergenerational Equity and Global Food Supply—Past, Present, and Future

Keith Aoki

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.

The Google Book Settlement as Copyright Reform

Pamela Samuelson

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.