Intellectual Property Outline

Intellectual Property Outline
 
Pre-IP Protection Systems – Protecting something prior to creating those rights.
·        Copyright à protection thru common law copyright
·        Patent à TS
·        TM à ITU
 
Capacious – sizable
Egregious – bad
 
Theme:
carving up the world into different standards within an IP regimes à for example famous marks are afforded more protection under the Lanham Act
multiplicity – different regimes, mini regimes other sources of law to find protection for IP. 
Harm in not protecting: loss of market and loss of potential markets
 
Origins and Rationale for Intellectual Property Laws
Public Policy Considerations:
*One goal is to provide incentives to create by giving creators property rights in the products of their creative
*Another goal is to provide the greatest possible public access to products of creativity in order to promote a competitive market place
 
Issues to Address:
Must first say there is a right to own something that does not exist
Must justify that right: why are we doing this?
What is the subject matter and scope of protection?
To what extent allow other to use through fair-use?
How far extend over time?
 
The extent of protection is largely a policy question
o       So we created system that is multivailing and goes across jurisdictions and has relationships with the object being protected
o       Has common law, state and federal schemes of protection with shared values
o     One set of principals that goes through it all often with different results
o     Mutlivailing creates benefits for practitioners to manipulate it and guidelines for courts to find reasons for their decisions to protect or not to protect.
 
Themes
I.                    Multiplicity of IP
a.      Pro: different regimes have different tasks
b.      Con: conflict of law (try to solve with preemption)
–         congress can preempt by passing law saying state law is preempted
–         state law interferes with the purposes of the fed law
II.                 Justifications for IP:
a.      Labor Justifications Model (Locke) – you labored to collect acorns then you have the rights to acorns as long is you didn’t harm another in securing the acorns. You worked for it, you deserve the rights to it “sweat of the brow”; individual added to value. How much work do you have to put in to get protection. *natural law
b.      Personality Model (Hegel/Holmes) – right to property because IP is an expression of self – means a great deal to me therefore I have a right to them (ex: a painting – part of me it in it). People have connections to what they create,