No Law: Intellectual Property in the Image of an Absolute First Amendment

By David L. Lange; H. Jefferson Powell | Go to book overview

CHAPTER 2

Patents, Copyright, and Neighboring Rights

COPYRIGHT AND PATENT LAW

No two legal systems in American intellectual property are more alike in their common origins, nor (at least to a considerable degree) in their common jurisprudence. Yet none are more truly juxtaposed in the details of their existence. Copyright law and patent law are the yin and yang of intellectual property, doctrinal fields whose differing natures serve at least partly to define the boundaries between them. Copyright is the domain chiefly of expressive works, such as those that figure in the arts, entertainment, or the information industries.1 Patent law offers protection primarily for practicable works of utility, which comprise (in the language of the Patent Act) “any new and useful process, machine, [article of] manufacture or composition of matter, including any new and useful improvement thereof….”2 Few lawyers presume to practice as specialists across both fields of law. The complexities in each are separately formidable, and the subject matter considerably antithetical. One is a copyright lawyer or a patent lawyer, but ordinarily not both.3

We propose to treat copyright and patent law comparatively. Their complexity, however, makes it necessary to adopt a more elaborate system of subclassification than we have thought useful in the case of other intellectual property doctrines. For the tedious burden this may impose on the reader we apologize in advance, trusting (or perhaps merely hoping) that in the end the effort will seem to have been worthwhile.


Constitutional Origins

The common origins of copyright and patent rights in American law are to be found in the Constitution, in Article I, Section 8, Clause 8, which includes among the express powers consigned to Congress the following provision: “To promote the progress of science and the useful arts, by

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