Academic journal article William and Mary Law Review

A Pasture Theory of Creative Controls: A New Approach to Copyright and Patent Subject Matter Overgrowth

Academic journal article William and Mary Law Review

A Pasture Theory of Creative Controls: A New Approach to Copyright and Patent Subject Matter Overgrowth

Article excerpt

TABLE OF CONTENTS  INTRODUCTION I.   A PASTURE THEORY OF SUBJECT MATTER DEFINITION II.  THE AGGRESSIVE EXPANSION OF COPYRIGHT LAW      A. The Rightful Place of Copyright Law      B. Copyright in Architecture      C. Copyright in Computer Programs III. THE SLOW CREEP OF PATENT PROTECTIONS      A. The Rightful Place of Patent Law      B. Patent Law in Business Methods      C. Patent Law in Quasi-Natural Discoveries IV.  DEBUNKING COMMON COUNTERARGUMENTS      A. The Legitimacy of Design Patents      B. The Elusion of Peaceful Overlap      C. Legislative & Historical Interpretation CONCLUSION: REDEFINING FROM THE START 

INTRODUCTION

In the many years since their inception in 1787, (1) American copyright and patent law have each grown beyond their original meager bounds. Generations have struggled over the proper way to cabin and define such a simple, but empowering phrase: (2) "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." (3) From this singular point, numerous legislative amendments and common law rulings pulled the boundary lines wider. (4) As technology began rapidly progressing in the twentieth century, the subject matter jurisdictions of copyright and patent law saw healthy--and arguably gluttonous--growth. (5) Whether the speed of progress, lack of understanding by adjudicators, or disagreement among intellectual property scholars have separately or jointly contributed to the expansion, the implications are clear: the defining lines are neither definite nor linear. In response, this Note establishes two overarching goals: (1) to properly relegate copyright and patent law to their own separate fields; and (2) to prevent either form of intellectual property protection from absorbing sui generis (6) territory unconfronted as new areas of idea and expression emerge.

To put the problem of subject matter overgrowth in perspective, imagine that a few decades from now a brilliant young architecture student is visiting Los Angeles for the first time. While on a city tour, the student is inspired by the sights, in awe of how artistic some of the buildings are. Nothing compares, however, to the beauty of one particularly magnificent concert hall, resplendently covered in steel and glass that artfully twists across the building's surface. (7) The student, taken in, leaves the city with a book full of sketches of that building--an important milestone in her career. All of her future work, whether designing office buildings or public parks, is inspired and clearly reminiscent of her singular inspiration. But one day, her inspiration turns to consternation, when a legalese-laden letter crosses her desk. She is being sued for copyright infringement of the concert hall's design, for producing unlicensed derivative works. "But these are buildings, bridges, and walkways," she wonders, "they are functional, physical, and purposeful. They are much more than simple paintings or poems!" But here, one man's monopoly on the design has become another's complete restraint of creative expression. And it is all because lawmakers have let the subject matter of copyright sprawl to the point of choking out its once noble goal: the pursuit of progress in the arts. This (albeit sensationalized) future will not seem so foreign if Congress does not trim back and redefine copyright and patent protections at their roots--their core subject matter. In other words, instead of Congress or the courts continually adjusting the round hole to accommodate the square peg, they should consider, perhaps, introducing a square hole.

The existence of subject matter overgrowth is by no means a novel realization, though it is not often discussed. Andrew Beckerman-Rodau has pointed out in detail the boundary bleeding between copyright, trademark, and patent law. (8) Though he delves into a discussion of reasons why this expansion may have occurred (a subject beyond the scope of this Note), he concludes that academics have not properly prioritized the balancing of the intellectual property fields. …

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