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Intellectual Property
St. Johns University School of Law
De la Durantaye, Katharina

Introduction to Intellectual Property Outline
Overview/Philosophical Perspectives
1)     Basic Doctrines of Federal Regimes > [1] trademarks [2] patents [3] copyright
2)     Old Doctrines: If you look at the history of IP the legal regime has almost always reacted to technological (created new opportunities and new problems)
a)     Ex. Copyright law > reaction to invention of the printing press
b)     Ex. Digital Revolution > The internet; challenge the existing legal system to try to adapt to changes
3)     What is Property?
a)     A system of rights and duties among people with respect to physical things
i)       Grants individuals a certain amount of power against the state
4)     Why Do we Have Property?
a)     Property is the foundation for an ordered economic system
b)     Incentives for Discovery > if you discover something then it is yours
c)      Part of Personhood
5)     What is the difference between tangible property and IP?
a)     Tangible property are physical things that can only be at one place at one time
b)     Intangible things – are are goods/ideas – don’t lose the property by telling the ideas.
c)      Tragedy of the Commons > Disadvantages – if you make everyone share property – will lead to overuse. If you give this same property to one person he will be careful not to let the land get devalued. Should give it to the person who can do the most with it because it will benefit society as a whole ( Therefore should give rights over the property ).
d)     Does the same Justification apply to IP?
i)       Non exclusive, non rivalrous, and no danger of overusing an idea
(1) Since there is no danger of overusing an idea the tragedy of the commons justification does not apply here
(2) Justifications for granting IP rights
(a) Moral Arguments (Natural Law)
(b) Personhood Arguments
(c)   Utilitarian/Economic Efficiency
ii)     Moral Arguments for IP
(1) Argument is based on Locke’s justification for tangible property. Everybody owns the results of what he or she does (his labor or work as long as there is enough for others to use).
(a) If you take something out of the commons it becomes yours even without the consent of the commons
(b) 2 conditions
(i)    Can take if there is still enough for everyone else to use
(ii) Nonwaste – Can only take what you really use.
(2) Does this apply to IP?
(a) Locke wants to grant property rights to individuals so long as it increases the commons
(b) Do ideas require labor?
(i)    Problem à Production of ideas> does this require labor? Think about blogs. Not really labor – Ideas may just come to you out of the blue and not because you worked to get it.
(ii) What requires labor is the execution of the idea and not the idea itself.
(c)   2 views of labor
(i)    The Avoidance Theory > is based on the assumption that people rather go on vacation than work. They will only work if they expect something in return > 2 consequences.
1.      Normative View > Because labor is unpleasant should be rewarded with property rights.
a.       Problem with this > Lock is interested in enriching the commons – logical grant of property rights to htose that are most beneficial to society > this does not necessarily requires that the most labor be produced.
2.      Instrumental View > Because Labor is unpleasant must reward them to create an incentive for them to do work.
a.       We should grant lesser rights to things that are more fun. People will do these things even if they don’t get a reward.
(d) The Value Added Theory > The idea here is if labor produces something of value then the laborer deserves the benefit for it. The added value deserves the protection > doesn’t make a difference whether the labor is pleasant or not.
(i)    Trademarks and Trade Secrets > There has to be a use of these. There is an added value that is taken away by competitors – the protection against loss of social value (prevention of consumer confusion and reduction of transaction costs)
(ii) Patents > in order for inventions to be patented it has to be useful. In the idea of usefulness is the idea of some sort of value. Also must be:
1.      Non obvious (not something that anybody can think of right away) – this connotes some added value.
(iii)Copyrights > No use here. Need nothing more than fixation on a tangible medium to get the copyright. Value Added Theory does not apply here but there is still an assumption that there will still be a net gain to society.
iii)   Personhood Arguments
(1) Hegel – there is a special relationship between property and personhood.
(a) Really can only express yourself fully if you interact with the world and only if you can own things.
(b) If you take away one’s property then you are taking away a part of the self.
(i)    Loss = Pain – shows that part of personhood is taken away
1.      Not all object loss is equally important. Fungible —–personal (continuum).
(ii) Application to IP > is there a lot of yourself to what you create? A novel or a poem can be tied to personality.
1.      Things that seem less tied to personality > coming up with a formula is less tied to personality but some people say that they express themselves through such formulas
a.       There are degrees of personhoodness in work
i.         Nobody creates out of the blue – product of things that exited before you.
(c)   Peggy Radin
(i)    To achieve proper self-development—

sion costs > nobody else could use the same expression and therefore would have to come up with other words. New authors would have to find different ways to express themselves.
(i)    Transaction costs > have to get licenses from owners if you want to build upon their works
(c)   Distinction between idea and expression
(i)    The execution of the idea requires more than the idea itself (ideas are free in general)
(ii) Copyright law – only the expression is protected
(iii)In patent law you need some type of technical application as well (cannot be applied to a mere idea) if certain ideas were protected then there would not be enough goods in the public domain/in the commons.
1.      Extraordinary ideas can never be protected – i.e. E= MC2
2.      Common every day ideas – htat everybody needs to use are not protected because they are so important to society as a whole (ex. Trademarks that have become generic – aspirin, cellophane … if we did grant private rights to these terms then would make people have to constantly pay license fees).
(5)U.S. Constitution, Article I, Section 8:
(a) The Congress shall have Power …
(i)    To regulate Commerce with foreign nations, and among several states, and with the Indian Tribes; [and] (ii) 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 …”
1.      Commerce Clause and Copyright and Patent Clause
2.      Means to an end – grant of exclusive rights > promote progress of science and useful arts is the end.
a.       “Securing rights” > implies that attaining natural rights that are already there. Interpretation of the framer’s intent.
v)     2 Competing Philosophies > Moral and Personhood v. Utilitarian
(1) What is driving the person to create? > his soul v. his money
vi) What are the Alternatives?
(1) Copyright Protection > maybe liability regime – taxing scheme. Would still recognize that there was a right.
Trademark Protection> Consumer Protection Statutes or Public Regulation, enforcement of unfair competition law, industry self-regulation, deceit and misrepresentation