Intellectual Property Scholars Research Articles

Intellectual property for the neurocentric age: towards a neuropolitics of IP

S | 51 Intellectual Property for the Neurocentric Age: Towards a Neuropolitics of IP Debora Halbert Associate Professor of Political Science, University of Hawaii Law at Manoa Honolulu, HI Co-author: Jake Dunagan Advances in the brain sciences are calling into question many of the foundational assumptions upon which intellectual property law has been built, and how it is practiced. These include notions of tangibility, likelihood of confusion, individual authorship, and even the act of creation itself. At the same time, IP law exerts a strong influence on how people access, develop, and share expressions and inventions of the mind. The field of brain science suggests a fundamentally different type of interaction exists between the individual, culture and power. Taken together, emerging insights from the brain sciences and the shifting dynamics of IP law point to a need for a new analytical framework a neuropolitics of IP law. In this paper we sketch out the concept of neuropolitics as it relates to creativity and innovation. A neuropolitics of IP law allows us to think about the context in which we structure intellectual property laws and how we ought to begin to think about structuring intellectual property laws. If law can evolve to better reflect the underlying human condition, then bringing brain science research into conversation with intellectual property scholars is an important step towards an intellectual property law appropriate for the neurocentric age. Email: halbert@hawaii.edu

Fake It till You Make It: A Justification for Intellectual Property "Piracy"

Economic development, especially in the Least Developed Countries (LDC), requires use of intellectual property without always compensating the rights holders in the most developed countries. Unconventionally, this Article uses neoclassical economics to provide a rational solution to access rights in the LDC while respecting the first principle of intellectual property right—utilitarianism. The price discrimination model provides a useful rubric to segregate developed country markets from developing country markets. Furthermore, it also provides a subtle test in the case of individual uses of intellectual property as to which should be tolerated in developing nations as uncompensated uses and which should be punished as piracy due to their subverting the economic incentive necessary to promote the creation of intellectual property in the more developed nations. This Article concludes that in the long run, tolerated uncompensated uses in nascent LDC markets are more efficient engines of economic development than direct foreign or sporadic technology transfer and therefore, are in the developed countries’ best interests to promote a stable global community through economic development in the LDC. * Professor, University of Toledo College of Law (lgibbon@utnet.utoledo.edu). The author would like to express his appreciation to faculty participants who commented on his paper at the 14th annual Intellectual Property Scholars Conference (Berkeley School of Law), Midwestern People of Color Legal Scholarship Conference (Indiana Tech Law School), and 2014 Intellectual Property Scholars Roundtable (Drake University Law School). He would also like to acknowledge Professor Daryl Lim’s extraordinary skills as a commentator. Finally, the author would like to acknowledge the encouragement of Gerardo Villagomez de Oliveira e Souza. As always, the many flaws in this Article are solely the responsibility of the author. 1. Close to Home, Fake It Till You Make It, PLYRICS (2012), http://www.plyrics.com/lyrics/ closetohome/fakeittilyoumakeit.html. 2. Least Developed Countries (LDCs), UNITED NATIONS CONFERENCE ON TRADE & DEV. (2013), http://unctad.org/en/Pages/ALDC/Least%20Developed%20Countries/LDCs.aspx (last visited Sept. 19, 2014) (defining LDCs as “a category of States that are deemed highly disadvantaged in their development process, for structural, historical and also geographical

Learning from Lin: Lessons and Cautions from the Natural Commons for the Knowledge Commons

Intellectual Property (IP) scholars increasingly are turning to the works and analytical frameworks of Elinor ("Lin") Ostrom in an effort to determine the best property/regulatory regime(s) for governing various kinds of information in different contexts. This paper serves as a general introduction to Lin's Institutional Analysis & Development (IAD) framework, with special attention to IP applications. The paper also contains a couple of important cautions for IP scholars seeking to use the IAD framework. First, the framework is not very useful for normative purposes (determining what the legal rules should be), but is more for diagnostic, and sometimes predictive, purposes. Second, applying the framework to information is very different from applying it to natural common-pool resources (CPRs). In natural CPRs, open-access is usually the problem to be resolved through collective-action. With respect to information, by contrast, many scholars consider open-access a viable and desirable solution to the problem of insufficient access.

Intellectual Property for Breakfast: Market Power and Informative Symbols in the Marketplace

This paper continues to examine an important question: are trademarks a source of market power, or, when, put differently, are trademarks an antitrust problem? This fundamental question is a cause of division among antitrust and intellectual property law scholars, however, by raising it and presenting some scenarios that can provide answers, it is hoped that contemporary antitrust and intellectual property scholars can explore some of its implications. As part of my own quest in addressing this question, I explore in this paper the proposition that creative deception and the wealth generating capacity of trademarks are (unorthodox) elements that when considered against the backdrop of case law, then, not only is creative deception a part of the process of product differentiation but also trademarks are in fact an antitrust problem. Some of my earlier arguments are set out in the previous papers, and one aim of the current paper is to explore the implication of product differentiation for evading antitrust rules.

Beyond the Patents-Prizes Debate

Intellectual property scholars have vigorously debated the merits of patents versus prizes for encouraging innovation, with occasional consideration of government grants. But these are not the only options. Perhaps most significantly, the patents-versus-prizes (or patents-versus-prizes-versus-grants) debate has largely neglected the role of tax incentives in innovation policy, despite the tens of billions of dollars spent globally on tax breaks for RD like grants, they reduce the social-welfare costs of frictions in imperfect capital markets. Our taxonomy also sheds new light on nonefficiency dimensions of R&D policy. Grants, tax credits, and prizes generally require all taxpayers to subsidize R&D regardless of whether they use the resulting products, whereas the patent system imposes R&D costs primarily upon the consumers who purchase patented products. In some contexts (e.g., life-saving drugs), the user-pays aspect of the patent system is difficult to defend on distributive justice grounds. In other contexts (e.g., luxury goods), the user-pays aspect of the patent system may make patents normatively preferable in comparison to alternative incentive mechanisms.Ultimately, optimal innovation policy will depend on a range of factors that are likely to vary across contexts. For example, grants may be optimal where the government has a comparative advantage in evaluating potential projects, while tax credits may be optimal where potential innovators have private information about project prospects and limited access to outside capital. We argue for a pluralistic approach to innovation policy that incorporates each of the four main incentive mechanisms, and we provide examples of this pluralistic approach in practice.

Introduction to the Washington Declaration on Intellectual Property and the Public Interest

The last weekend in August 2011, nearly 200 international intellectual property scholars and policy advocates gathered in Washington D.C. to “re-articulate the public interest dimension in intellectual property law and policy.” The meeting — christened the “inaugural Global Congress on Intellectual Property and the Public Interest” — produced the Washington Declaration on Intellectual Property and the Public Interest. This introduction provides a brief overview of the genesis of the network that was assembled at the Congress and of the process used to create its Declaration.

Multiple Identities: Why the Right of Publicity Should Be a Federal Law

Given the increased use of the Internet and social media in this fast-moving age of information and technology, the right of publicity is becoming more problematic at the state level. Thus, this article attempts to persuade lawmakers and the public that the right of publicity must be modifed to keep up with the fast-progressing times. What follows is a detailed analysis of the right ofpublicity and an argument for why the right should be a federal right. Drawing heavily on intellectual property scholarship and case law, this article examines the issues and benefits surrounding the right of publicity, and uses these to advocate for a federal right. Various case examples are provided to assist in exploiting the problems with the right ofpublicity remaining a statebased right. Additionally, the article provides a detailed look at how the right of publicity, as a state-based right, is conflicting with federal laws. Finally, the article concludes with suggestions on how to craft a solid federal right ofpublicity statute.

The Cloud: Boundless Digital Potential or Enclosure 3.0?

The Cloud presents enormous potential for users to have access to facilities such as vast data storage and infinite computing capacity. Yet the Cloud, taken from the perspective of the average user, does have a dark side. I agree with a number of writers and the concerns that they raise about privacy and personal autonomy on the internet and the Cloud. However, I wish to voice concern over another change. From the perspective of users, the Cloud might also reduce the range of user possibilities for robust interaction with the internet/Cloud in a manner which then prevents users from participating in the internet as creators, collaborators, and sharers. The Cloud is “manageable” in a way the internet was not, and with users increasingly interacting with the internet with relatively less powerful devices than computers – smartphones, tablets and the like – this ability for Cloud service providers to control or manage users is enhanced. We owe the vocabulary of “enclosure” to Hungarian-Canadian political economist Karl Polanyi. In his seminal work, The Great Transformation, Polanyi described the enclosure movement in England in which communally integrated and collective farming practices on common lands were suppressed by authorities of the state, forcefully and sometimes brutally, in order to privatize land resources and create the conditions for a market economy in both agriculture as well as other sectors. More recently, the term “enclosure” has been used effectively by American intellectual property scholars such as James Boyle to describe the manner in which intellectual property rules and the concurrent practices of IP rights holders (for copyright, often large corporate interests) in the age of the internet were being used to restrict access to the public domain of ideas or the information commons.I argue that the Cloud, unless monitored and possibly directed, has the potential to go beyond undermining copyright and the public domain – Enclosure 2.0 – and to go beyond weakening privacy. This round, which I call “Enclosure 3.0”, has the potential to disempower internet users and conversely empower a very small group of gatekeepers. Put bluntly, it has the potential to relegate internet users to the status of digital sheep.By focusing on the entities that provide Cloud services, I argue that we might take steps to encourage or, if necessary, force private entities to keep the Cloud open and accessible in the long term. I also posit the desirability of a publicly-held Cloud to achieve this same end.

Trademark and Copyright Enforcement in the Shadow of IP Law

In recent years, as Congress has created new intellectual property (IP) rights and courts have often interpreted those rights broadly, legal scholars have frequently decried the expanded scope of protection afforded IP owners in most substantive areas of IP law. According to this critique, the over-expansion of IP rights throughout the past two decades harms competition, chills free speech, and diminishes the public domain as increasingly broad areas of social life are brought within the scope of strong IP protection. While this over-expansion theory reflects an important — indeed, foundational — policy debate concerning the proper balance between IP owners’ rights and the public’s rights of access to the information, ideas, and expressions that IP protects, it is incomplete because it focuses largely on what Congress or the courts do. In reality, most enforcement of IP rights takes place not in court, but in the everyday practices of IP owners and their lawyers. “Cease and desist” letters, phone calls, and negotiations with alleged infringers constitute the bulk of IP enforcement efforts in trademark and copyright practice. To be sure, these efforts take place in the “shadow” of IP law and are therefore influenced by it. But it is in these everyday practices — and not in trial or appellate courts — that most IP rights are asserted, resisted, and negotiated. Thus, if we want to know whether IP rights are over-enforced or over-extended, we need to know how, why, and to what effect these rights are exercised in the everyday practices of IP owners and their lawyers. To date, however, IP scholarship has focused virtually no attention on this critical arena of everyday practice. This Article presents findings from a qualitative empirical study of the trademark and copyright disputing process outside of court, based on original data derived from semi-structured interviews with experienced IP attorneys who advise clients on how to enforce their rights. This research is one of the first studies to examine how trademark and copyright claims are actually enforced in practice. One significant finding from this study is that “repeat player” trademark and copyright owners (and their lawyers) knowingly assert weak IP claims at times — precisely because it works, as enforcement targets are unable or unwilling to resist claims that may lack legal merit due to the costs and uncertainties of threatened litigation. Moreover, the lawyers who assert weak IP claims have ready practical and ethical justifications for their actions. This study also suggests that legal sanctions directed at deterring over-reaching IP enforcement are unlikely to be effective because most such over-reaching occurs in informal disputing processes outside of the legal system.

A roadmap for TRIPS: copyright and film in Colonial and Independent India

Copyright law shapes the film industry in many countries. As one of the largest producers of popular movies, India provides a case study for exploring the relationship between copyright law and the film industry. This article fills a gap in the intellectual property scholarship literature by analysing the developments of copyright law in Colonial and post-Independence India, and tracing the development of the law to the development of the industry. This historical background serves as a foundation for analysing contemporary debates in Indian copyright law, especially as applied to the film industry. The primary findings are on the recurrrent theme of trade and copyright law, the extraterritorial application of copyright law outside India’s borders, and the changing interpretation of the copyright law to reflect changes in the film industry and technology.

The Origins of American Design Protection

Many firms invest heavily in the way their products look, and they rely on a handful of intellectual property regimes to stop rivals from producing look-alikes. Two of these regimes – copyright and trademark – have been have been closely scrutinized in intellectual property scholarship. A third, the design patent, remains little understood except among specialists. In particular, there has been virtually no analysis of the design patent system’s core assumption: that the rules governing patents for inventions should be incorporated en masse for designs.One reason why the design patent system has remained largely unexplored in the literature is that scholars have never explained how and why the system came to exist. This Article seeks to provide that account. We show how technological innovation in early American manufacturing (especially in the cast-iron goods industry) created unprecedented opportunities for creativity in industrial design, and a concomitant expansion in design piracy. We analyze manufacturers’ lobbying efforts that led to the first American legislative proposals for design protection, and we connect those proposals to antecedents in British copyright and design registration legislation. We also explain how these early proposals were transmuted into design patent proposals, and we explore the idiosyncratic political circumstances that surrounded the eventual passage of the design patent bill. We conclude by reassessing the modern design patent regime in view of insights drawn from our historical account.

Situating Feminism, Patent Law, and the Public Domain

Introduction Both critical intellectual property studies and feminist legal scholarship seldom address the gendered dimensions of patent law or its implications for women and women's rights. This lack of attention raises awareness of the need to broaden our approach to studies of patent law and the public domain. During recent fieldwork in South Africa, I began to consider patent law as a feminist site of inquiry and to think through the difficulties of such an examination. [double dagger]Khomani San women in the northern Cape express concerns over the patenting of biological and genetic materials derived from their indigenous traditional knowledge. Maintaining control over their knowledge and resources is important for feeding their families and safeguarding their intellectual histories and heritage as female plant gatherers. The [double dagger]Khomani San peoples are currently engaged in political struggles against patent law and the ownership of their indigenous knowledge, but such organizing has not been explicitly gender-based. Although some [double dagger]Khomani San women articulate patent law as a women's rights issue, other women in the community consider issues of patent law to be genderneutral. Concerns arising from patent ownership of indigenous knowledge are also not the main priority. [double dagger]Khomani San women committed to gender-based political organizing explain the difficulties of mobilizing and educating indigenous San women in their communities. Political organizing takes money and resources, and San communities are spread out over great distances within South Africa, Botswana, and Namibia, making meetings difficult to arrange. Issues of patent law are also not as significant or pressing as the material conditions of domestic violence, substance abuse, and poverty facing San women and their families right now. Thus, [double dagger]Khomani San men and women are involved in struggles against patent law, yet their political work does not explicitly address the connections between patent ownership and gendered social relations. Indigenous women elsewhere, however, have begun to address patent law from a gender-based perspective. The 1995 Beijing Declaration of Indigenous Women and 2004 Manukan Declaration of the Indigenous Women's Biodiversity Network explicitly argue that intellectual property rights threaten indigenous women's lives. I The Indigenous Peoples' Permanent Forum also highlights patent law as an issue of concern for indigenous women. (2) Local women in India have taken up the issue through with the Diverse Women for Diversity Campaign in connection with Vandana Shiva. (3) Patent law as a gender-based issue therefore emerges within some international forums, and may also circulate at the local level such as with Diverse Women. On the other hand, as with the [double dagger]Khomani San, discourses of indigenous rights around patent law are seemingly framed in gender-neutral terms. Or are they? San struggles related to the patenting of Hoodia may appear gender-neutral as read through the narrow registers of liberal feminism. Yet, as will be further discussed, the masculinized discourses and gendered social relations at work within political struggles related to Hoodia become visible when scrutinized through a lens of transnational, indigenous, African feminisms. Addressing the complex gender relations that shape and are shaped by patent owernship is a complex task. it requires careful consideration of the interactions, relationalities, and hierarchies within social relations of gender, indigeneity, ethnicity, race, and histories of colonialism. Legacies of liberal, western feminism must also be confronted and continually interrogated. Yet, I contend that studies of patent law struggles and complex gendered relations can help push the boundaries of critical intellectual property scholarship and feminist legal scholarship, by asking new questions and defining the fields in new ways. …

Waiting for Bilski: A Patent Story

Bilski v. Kappos was a patent law case that captured the attention of not just intellectual property scholars, but also the business world, mainstream media, and even the Supreme Court. After waiting nearly 7 months from argument, the Court handed down the Bilski opinion. This brief essay does not comment on the case itself, but is rather a satirical look at the hype that surrounded the case and the let down that followed from the opinion's release.

Harvesting Intellectual Property

Harvesting Intellectual Property

Deconstructing Jefferson's Candle: Towards a Critical Realist Approach to Cultural Environmentalism and Information Policy

In this essay, I hope to move information policy towards firmer normative ground by introducing the resources of critical realism and environmental virtue ethics to intellectual property scholarship. Culture, like the natural environment, will flourish if well-tended and collapse if polluted and despoiled. The cultural environmentalist movement is right to compare human culture to the natural environment, but it strips the environmental metaphor of any normative force when it depicts culture as an infinitely malleable social construction. Critical realism (as distinguished from critical legal studies) is a broad philosophical and epistemological approach that avoids the extremes of modern positivism and postmodern skepticism. A critical realist perspective suggests that culture, like the natural environment, can be shaped by human activity only within the limits established by the external reality in which we find ourselves. Those limits can be embodied in virtues and practices similar to those that the field of environmental virtue ethics has found helpful in reference to the natural environment. The essay concludes with an application of these ideas to the network neutrality debate.

Secrets Revealed: How Magicians Protect Intellectual Property without Law

Intellectual property scholars have begun to explore the curious dynamics of IP's negative spaces, areas in which IP law offers scant protection for innovators, but where innovation nevertheless seems to thrive. Such negative spaces pose a puzzle for the traditional theory of IP, which holds that IP law is necessary to create incentives for innovation. This paper presents a study of one such negative space which has so far garnered some curiosity but little sustained attention - the world of performing magicians. This paper argues that idiosyncratic dynamics among magicians make traditional copyright, patent, and trade secret law ill-suited to protecting magicians' most valuable intellectual property. Yet, the paper further argues that the magic community has developed its own set of unique IP norms which effectively operate in law's absence. The paper details the structure of these informal norms that protect the creation, dissemination, and performance of magic tricks. The paper also discusses broader implications for IP theory, suggesting that a norm-based approach may offer a promising explanation for the puzzling persistence of some of IP's negative spaces.

Cultural Environmentalism and Beyond

It is hard to explain how honored I was when Larry Lessig and his colleagues at Stanford organized this conference around some of my ideas — or more accurately, around a set of ideas for which they gave me greater credit than I deserved. This kind of thing generally happens when one is either dead or retiring (I am hoping that the contributors do not have some knowledge I lack about the imminence of either of those events). The event was doubly humbling. The scholars who agreed to write for this volume are a remarkable group whose work I admire greatly, while Larry’s own scholarship and work as a public intellectual are also a great inspiration to me — he is clearly the one whose work deserves a symposium, if anyone’s does. The contributions to the symposium include four main articles that engage in different ways and degrees with my work and with the idea of cultural environmentalism, commentaries on those articles, and, at the end, two papers that evolved from commentaries but that are no longer directed towards the articles on which they originally commented. I could not hope to respond to everything in the volume point by point, and I am not going to try. Instead, I will offer my own thoughts on the failings, limitations, occasional promise, and possible future of the ideas discussed in this symposium — both the work on cultural environmentalism and the surrounding ideas on authorship, the rhetoric of economic analysis, the structure of intellectual property scholarship, and the jurisprudence of the public domain. Where appropriate, I will try to link my comments back to the individual articles and comments in this symposium.

Piracy, Prejudice and Profit: A Perspective from US–China Intellectual Property Rights Disputes1

Intellectual property scholars and US–China trade observers alike have spilled much ink on describing and explaining piracy and China's apparently “voracious appetite” for it. Unfortunately, such extensive discussions tend to oversimplify the complicated picture by exaggerating only particular aspects of the piracy problem. As a consequence, those discussions have created widespread misconceptions that confuse the public as to the truth of the piracy phenomenon in general, and Chinese piracy in particular. This article examines the US–China piracy debate in a wider context and challenges the three most common misconceptions about piracy: (1) stronger intellectual property rights protection is necessarily beneficial to economic development; (2) piracy is primarily a problem of lack of law; and (3) intellectual property businesses cannot profit from piracy. The analysis of this article dictates a more rational use of government regulation, as well as business strategies for the benefit of individual business and, ultimately, for society.

Risk Aversion and Rights Accretion in Intellectual Property Law

Intellectual property’s road to hell is paved with good intentions. Because liability is difficult to predict and the consequences of infringement are dire, risk-averse intellectual property users often seek a license when none is needed. Yet because the existence (vel non) of licensing markets plays a key role in determining the breadth of rights, these seemingly sensible licensing decisions eventually feed back into doctrine, as the licensing itself becomes proof that the entitlement covers the use. Over time, then, public privilege recedes and rights expand, moving intellectual property’s ubiquitous gray areas into what used to be virgin territory—where risk aversion again creates licensing markets, which causes further accretion of entitlements, which in turn pushes the gray areas even farther afield, and so on. This “doctrinal feedback” is not a result of changes in the positive law but is instead rooted in longstanding, widely accepted doctrine and prudent behavior on the part of everyone involved. And because feedback is so ingrained in established law and practice, its various cures tend to create more problems than they solve. In the end, however, subtle changes in doctrine’s use of licensing information provide a normatively neutral solution. author. Assistant Professor of Law and Director of the Intellectual Property Institute, University of Richmond. E-mail: jgibson@richmond.edu. I received helpful input from Mike Carroll, Chris Cotropia, John Douglass, Wendy Gordon, Corinna Lain, Mark Lemley, Doug Lichtman, Mark McKenna, Shari Motro, Kristen Osenga, Susan Piascik, Rebecca Tushnet, Rob Tyler, Eugene Volokh, the editors of The Yale Law Journal, and the participants in the 2006 Berkeley/Stanford Intellectual Property Scholars Conference and the February 2006 Richmond Law Faculty Colloquy. For assistance in finding and understanding the behavioral sciences material, I am indebted to Scott Allison, Pola Gupta, Monika Kukar-Kinney, and Michelle Nelson. Finally, my thanks to Jane Savoca, living proof that some transactions carry no risk, only

Liberty versus Property? Cracks in the Foundations of Copyright Law

Many modern intellectual property scholars have argued that the creation of patents and copyrights, for inventions and writings, respectively, should be resisted on the grounds that these forms of property necessarily infringe ordinary forms of liberty, in contrast to property that is found in tangible things. This article rejects that claim by showing how property conflicts with liberty in both settings, but that the different configurations of rights observed in these various areas is defensible on the grounds that the loss of liberty for all persons is, to the extent that human institutions can make it, compensated by the increased utility generated by the various property rights in question. The appropriate approach to intellectual property is not abolition but fine-tuning in an effort to increase the gains from intellectual property generally.