Professor Andrew Beckerman-Rodau has recently written in the Yale Journal of Law & Technology that intellectual property protection has expanded beyond its intended, or appropriate, scope. This has resulted in the lines between subject matter (and their corresponding intellectual property) being blurred or completely erased. In turn, it’s created problems because the typical trio of protection – patent, trademark, and copyright – were developed to carefully balance each other and establish particular creative incentives. With the areas of protection now merging, the incentives are skewed, the balance is removed, and those original doctrines to which IP was tailored are no longer relevant.
The professor has a great point, and we can find many examples of multiple forms of protection on the same item. The article explores those original policies, details how change has come about, and considers what problems have developed because of the overlapping IP protection. Over at IPWatchdog, I played devil’s advocate and questioned whether this necessarily was a bad thing and, if so, whose role it was to correct. Is it fair to say that intellectual property laws are fundamentally capitalist tools, geared toward innovation, entrepreneurialism, and creativity, and as such, the law should be played out to the fullest extent possible so that those ends are achieved? Or do we risk serious damage to the economy and the system of innovation by failing to respect the original principles that today are not quite as fully embodied in the law?