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Copyright
Rutgers University, Newark School of Law
Kettle, John R.

I. SOURCES AND LIMITS OF INTELLECTUAL PROPERTY LAW

Eldred v. Ashcroft (S. Ct. 2003)

COPYRIGHT CLAUSE
ART I., §8
Congress shall have the power . . . (8) to promote the Progress of Science and useful Arts by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

ISSUE: Can Congress prescribe the DURATION of copyrights?

· CTEA (1998)=legislation that enlarged the duration of copyrights for 20 years (70 yrs after author’s death)—applied to both existing and future copyrights.
· 1976 Copyright Act=protection was from work’s creation until 50 yrs after author’s death.
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· SUPREMACY CLAUSE—federal patent and copyright statutes preempt state laws
o IP in GLOBAL community
o Berne Convention=copyright
o Paris Convention=patents/trademarks
· NATIONAL TREATMENT—each treaty member must protect creations of nationals of other treaty members on same terms that it protects creations of its own citizens.
· MINIMUM STANDARDS—where the protection a country gives is less than what the treaty prescribes, country must give foreign nat’l no less than treaty standards
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II.THE NATURE AND FUNCTIONS OF INTELLECTUAL PROPERTY LAW

· OBJECT of IP LAW—ensure consumers wide variety of intellectual goods at lowest price; achieves this end by giving individuals property rights in information produced and economic incentive to produce (opportunity to profit from their creations)

· ECONOMIC problems of IP LAW
o APPROPRIABILITY—information has little value to producer unless he can sell it, BUT selling it exposes it to competitors who can freely replicate it and sell at lower price than what initial producer needs to recoup his investment
o INDIVISIBILITY—information is intangible—cannot be completely consumed, unlimited number of users can consume w/o depletion.
o Once info is produced, it can benefit many users w/o imposing add’l costs on the producer.

BENEFITS of a PATENT SYSTEM
· INCENTIVE to invent by offering a reward to inventor—encourages expenditure of capital/time for research + development
· STIMULATES INVESTMENT OF ADD’L CAPITAL in further development and marketing of an invention—no one else can use, sell, make, so inventor will invest money to increase public consumption of his product.
· ENCOURAGES EARLY PUBLIC DISCLOSURE of tech info that otherwise

tical, consumers will only pick the one with “desirable qualities” by chance.

· Economic role of a trademark=help consumer identify the unobservable features of the product
· Provided to consumer in “summary form”—trademark=symbol that consumer identifies with a specific combination of features.

· Trademark identifies a QUALITY STANDARD, specific features of a product—the VARIETY of that product.

· Success of trademark in conveying to consumer the unobservable features of the product depends on 1) underlying market conditions,
2) the product,
3) frequency of purchase,
4) ease of information dissemination across consumers and
5) consumer’s recall.

· Contrast frequently purchased item like food/drink (“experience goods” w/ something like a washing machine that is purchased very infrequently

· Trademarks prevent confusion—similar trademarks disallowed b/c of dilution…connection between the trademark and the product is weakened if there is another product with a similar trademark.