Taking the Protection-Access Tradeoff Seriously
Perlman, Harvey S., Vanderbilt Law Review
Law and economics scholarship has contributed much to our understanding of both the nature of intellectual property rights generally and the features of individual intellectual property regimes. Indeed it is hard to imagine a field other than antitrust law that is so explicitly governed by economic thinking. In authorizing the copyright and patent systems, Article I, Section 8 of the United States Constitution expressly incorporates a social welfare imperative as the basis for its grant of power.1 Certainly economists and economically oriented legal academics have given the field the attention it is due.
I am far from being a sophisticated economic thinker, although I admire those who are and the insights they have brought to my understanding of what is at stake in intellectual property. My comments are more practical in nature. They involve the tension that arises throughout the law of intellectual property and unfair competition between protection of intellectual achievement and public access to intellectual products. This tension is reflected in the central questions: When are intellectual property rights appropriate and what is their proper scope? Economics seems to provide an apt description but an inadequate basis for answering these questions. And there lies, in my view, one of the reasons for the trend throughout intellectual property to enlarge property rights at the expense of access. For those of us who deem this trend problematic, economic analysis seems increasingly unhelpful in formulating a response protective of the public domain.
The tension between protection and access pervades intellectual property and unfair competition law. The casebook Ed Kitch and I coauthored uses it as one of the themes that tie the disparate chapters of the book together.2 Protection or access is at issue whether the case involves a local barber who wants an exclusive property interest in the barbering business of Howard Lake, Minnesota,3 or the promisee of a contract who claims to have a property interest in the future performance of the promissor,4 or the firm that claims a property interest in the firm's investment in the human capital of its workers,5 or the trademark owner who asserts a property right over portions of the English language,6 or the celebrity who seeks to capture gains from his or her celebrity status,7 or the more traditional cases involving constitutionally recognized authors and inventors.
There should be little doubt that the trend throughout intellectual property and unfair competition is toward greater protection and diminished access.8 The Digital Millennium Copyright Act9 is a notorious example of a protectionist advance, as is the apparent willingness of the Patent and Trademark Office and the Federal Circuit to expand the realm of patent protection.10 But the trend is noticeable elsewhere as well. The adoption of the trademark dilution cause of action11 and the expanding protection against cybersquatters12 have refocused trademark law away from its traditional function of prevention of consumer confusion toward one that confers substantial property rights on trademark owners. 13 The protection of trade dress without proof of secondary meaning also favors property rights over rights of access.14 A similar rule applied to product designs and configurations would have created an even more damaging effect on competition, but the Supreme Court happily required proof of actual distinctiveness. 15
The classic misappropriation doctrine announced in International News Service v. Associated Press represents the power of the protectionist rhetoric over substance.16 The Restatement (Third) of Unfair Competition recognizes that the case offers little in terms of a coherent principle and has been of only marginal significance.17 Proponents of access may take heart from the doctrine's limited application, and yet it is currently asserted as an appropriate model in defense of data base protection18 and it continues to attract judicial adherents. …