Exclusivity versus Appropriation: Some
Questions and Costs
AS WE HAVE SEEN, copyright in America encourages intellectual productivity by protecting the original expression of authors against appropriation by others for a period of time. Patents encourage productivity by inventors in similar fashion. Trade secrets encourage a more modest form of inventive productivity by protecting secret know-how and business practices against improper appropriation. Trademarks and unfair competition encourage confidence and efficiency in the marketplace by protecting trade identity against confusion and appropriation.
Note that intellectual property laws typically do not stop at forbidding unfair, immoral, or otherwise undesirable conduct. They also create or recognize or imply possessory interests that are themselves protected against the forbidden conduct. In copyright this means that expression is typically secured against appropriation as though expression were property—that is to say, with the implied entitlement to exclusivity that the concept of property typically affords. In patent and trade secret law, inventions and know-how become kindred species of property. In trademarks, the law professes to be concerned chiefly with confusion, but in reality often treats trade identity as though it too is property entitled to exclusivity. In unfair competition the law was once concerned mainly with improper conduct such as passing off, but now is concerned more insistently with exclusivity, as is the case with such examples of misappropriation as common law copyright and the right of publicity. The law of intellectual property thus encourages productivity, confidence, and efficiency, or so it is said—but in each instance, of course, an entitlement to exclusivity means that the interests of some persons are protected at the expense of the interests of others.
Questions and costs are implicit in the last sentence. Let us take them each in turn.