Access to ideas, and to the physical embodiments of ideas, fundamentally shapes our opportunities, goals, and lifelong projects. But before questions of access can be credibly voiced, we must first consider creation, discovery, and invention. If no ideas were created or discovered, there would be no issues of access and control. While not true in every instance, it is generally the case that authors and inventors invest significant amounts of time and resources in the pursuit of innovative activity. For example, hidden from plain sight are the countless hours honing the craft of bending notes on guitar strings, the dogged pursuit of discovering some new chemical compound, or creating processes that allow combustion engines to become more energy efficient. Also hidden are the costs that form the background of innovative activity. Electricity bills have to be paid, food secured, homework completed, and on and on.
Additionally, given that intellectual works of all sorts are non-rivalrous, in the sense that each of us can have a copy and your use does not preclude my use, the products of innovative activity may have profound and long-reaching effects on human health and well-being. Consider the car I purchase to better my life, the designs and innovative activity that allow that car, or any car to be built, and the line workers who put everything together. It should be acknowledged that innovative and creative activity provides the foundation for even the most basic forms of labor. If tools or technology are being used, there is likely an inventor standing behind that work. For example, and to put the point bluntly, when a doctor uses her skills and intellectual acumen to diagnose and administer a life-saving drug there is a single person benefited by this effort, but when innovators create this drug, there could be thousands or millions benefited. Because most intellectual works are non-rivalrous, we tend to forget the general benefits of innovative activity, the costs and risks shouldered to complete this work, and the incentives necessary to drive authors and inventors.
Your typical factory worker has an income stream directly associated with his physical and intellectual capacities to perform specific tasks. Operating in a market, he comes to rely on this income-generating capacity and plans his life accordingly. Authors and inventors are no different, except that the costs of research and development may be carried on for months, years, or even decades before any income is realized. Additionally, in many cases the efforts come to nothing and result in no income. For example, how many works of fiction go unpublished, and even if published, are profitable? In some areas, this risk is mitigated by trading the products of innovative activity for a paycheck. Thus, a company or business may defuse innovation research and development risks across a workforce.
Additionally, information technology has revolutionized content creation and distribution. There is more content available today than at any time in the past. In terms of media production, movies, television, and videos, it is estimated that each individual has 400 percent more choices now than 10 years ago.Footnote 1 A few scholars have argued that consuming so much of this content is actually making us dumber and less productive.Footnote 2 Obtaining a platform for expression is also not a problem. No longer wedded to the printed page or a narrow bandwidth of radio or television frequencies, individuals have a vast array of options for broadcasting their own expressions. Due to the amount of content being produced and made available, being heard beyond a narrow group of family, friends, and acquaintances may pose a challenge. But on the other hand, being heard by a larger group of people was not an issue in the 1980s, 1850s, or before.
So, what has changed about speech and expression, content production and access, since the mid-1980s? The advancement of information communication technologies and the computer revolution is the difference. Artificial intelligence (AI) and large language models will further shape innovation, research, and content creation. Speech, expression, and content used to be costly to produce. Those in the production and distribution industries had to be sure that what they were producing was worth the costs. Failure meant lost revenue, market share, and jobs. Quality controls and market analysis, including sales projections, served as gatekeeping mechanisms. Generally, content of all sorts was created by professionals. These individuals made a living, or attempted to make a living, by honing their craft and creating works that had commercial and artistic value.Footnote 3 These considerations, along with the fierce competition to secure production and distribution contracts, tended to ensure that the expressions created had some connection to quality.
Increasingly, since the 1980s and the widespread use of information technologies, anyone can instantiate and distribute virtually any kind of content. To instantiate an idea, set of ideas, feeling, theory, etc., is to produce a physical copy – extended in space and time with a mass – external to the human mind. For example, without taking a stand on the metaphysics of ideas, when a recipe is instantiated, it could be written down on paper or chiseled into stone. Producers, distributors, and other gatekeepers of quality are no longer needed, and in many areas of content production and distribution, they are irrelevant. The recent explosion of AI-generated content has accelerated this trend.
Consider, for example, academic publishing. There are over 25,000 peer-reviewed journals publishing approximately 2 million articles per year globally.Footnote 4 Note that peer-reviewed means everything from the gold standard of double-blind reviews by recognized experts to expedited reviews based on soundness not significance. In this latter form of peer review, a scholar simply determines if the method used is appropriate for the proposed inquiry. Some peer review models are nothing more than posting an article online and having random individuals post comments. Additionally, there are more than 8,000 predatory journals, and many have associated conferences and published conference proceedings.Footnote 5 Predatory journals typically have questionable review procedures and trade publication for fees paid by the author. Many more journals are “pay-to-play.”Footnote 6 These were previously called “vanity presses,” where an author would pay a publisher to have a book published and then claim that he/she was a “published author.” In pay-to-play journals, authors pay the publishing costs. Coupled with shoddy review standards and for-profit models, the incentives to publish any article submitted are strong. Moreover, many predatory and pay-to-play journals, along with the associated conferences, attempt to obfuscate the publishing environment by selecting names similar to respected journals and conferences. Evidence of negligent publication review standards is offered by numerous scholars, including John Bohannon. In 2013 Bohannon sent a fake article filled with junk science to 304 open-access journals.Footnote 7 Surprisingly, over half of the journals accepted Bohannon’s article for publication. Thus, even in a domain focused on quality of research, a domain focused on the quest for truth and the advancement of knowledge, we have increasing amounts of what could be called information pollution. A similar point can be made in the area of news production.Footnote 8
As discussed later, in the area of copyright, the quality, veracity, or truth-enhancing aspects of the content are irrelevant to protection. As long as the expression is original or not copied, then the rights of copyright may apply. Patents on new processes, machines, articles of manufacture, or compositions of matter do require usefulness. For example, to be patentable a new process for making automobiles must actually work for this purpose – but there is no necessary connection to quality required. Trade secrets, as determined by trade secret law, need not be truth-enhancing, useful, or even factual. In general, the legal institutions that protect the efforts of authors and inventors and the various moral entitlements that underlie these property claims do not ensure or require the quality of innovative activity. For example, you may gather vines and twist them into a massive knot that has no purpose or value. Nevertheless, you may still own this item as you own a broken car or a badly written poem.
AI promises to expand information pollution exponentially while at the same time giving us hope for a solution. AI scrapes the web or analyzes various databases learning how to predict words and phrases, recognize items, and perform specific tasks. AI seemingly generates content effortlessly. Much of this content is useful while much is complete rubbish. Ask ChatGPT, for example, about the “scapegoat objection to utilitarianism” and it will generate a decent answer. On the other hand, ask it about the “sly maxim maker objection to Kant’s categorical imperative” and it will fabricate something that sounds vaguely intelligent but is incorrect. One day AI will get the Kant question correct. But seed the training set with misinformation, information pollution, and bias in some areas, while at the same time training it on factual data sets for other areas, and the system could be manipulative and misleading.Footnote 9 Suppose a political group wanted to revise history to further its ideological ends. Placing large AI training sets of mostly factual information in the wild may achieve this goal. At the very least it would obfuscate the facts. Or consider something more benign. Suppose being truthful about a topic or issue would cause damage to an already marginalized group. Those in charge of checking for accuracy and fine-tuning the system might allow their own noble biases to cloud how the AI operates.
Nevertheless, AI is promising to be a revolutionary technology. One day we may have our own AI clones. In many cases those interacting with us digitally won’t know if it’s the real thing or some trained AI version of us. The emails I send, along with recommendation letters, reviews of articles or books, paying the bills, and scheduling the car for service, are tasks AI could oversee. Sophisticated AI systems may even be able to drive the car to the repair shop, check on the repairs, and pay for the service. Mundane tasks could be outsourced to AI and the efficiency savings will be impressive.
The length of a piece of writing at one time was used to signal effort and sometimes quality. Now machines can generate massive amounts of text, meaning that effort and quality will have to be judged in other ways. Along with beating chess masters, AI is already winning poetry contests, writing books, and excelling at digitally produced photography.Footnote 10 The cost of making movies will drop. Humans working with AI will be able to produce cheap movies, music, news stories, and additional forms of content.
Current debates about AI center on narrow questions about costs, benefits, and the public good. We are to balance the interests of creators with the public good of access and use. Using a straightforward cost–benefit analysis, it might be concluded that AI will produce a staggering amount of social utility, but at the cost of human-generated innovation.Footnote 11 Artists, journalists, musicians, and all sorts of content creators will be undercut in the market by AI that has been trained on the prior works of these innovators. In the coming decades, as new AI systems are trained on AI-created content and creators are pushed into different areas of endeavor, there might be a loss of true innovation and new content forms or expressions. With all the bells and whistles, along with the more complicated systems to come, AI is not intelligent.Footnote 12 These systems don’t understand the meaning of what is generated. AI imitates intelligence, understanding, and thoughtfulness. And while I am not some sort of speciesist – alas, one day we might create AI with agency and moral standing – that day is seemingly far off. If that day comes, I would have no problem with AI owning content along with having the full complement of basic rights.
From a rights viewpoint, either deontic or utilitarian, we may secure the creative rights of authors and inventors against straightforward social good arguments. Sometimes rights, even the right to an income stream, trump utility maximization. There is no balancing argument or fair use of someone’s body. Imagine someone could clone me – not me specifically, but a clone with my skills and capacities, and with fewer flaws. Throw in some noise from numerous other cloning projects, and you get something that has the look and feel of me but is not me. The clone takes my job because it will work for a quarter of the price, and the paycheck goes to the cloners. Note the clone wouldn’t exist but for me. I’m out of an income stream and all the years of investment that went into creating these abilities. Have the cloners done anything immoral or illegal? Do I have a right to an income stream? I would say “no” in fair conditions, but the cloning case seems unfair. Alas, we each invest large portions of our lives in creating, maintaining, and augmenting our capacities and abilities – and we do this to provide for ourselves, family, and friends. This effort also gives our lives meaning and purpose, and projects the values we find important into the world. AI does not invest anything when imitating these capacities and abilities. Broad use of AI is pressing us to consider these issues along with many others.
Overview
In this book, I present and defend five different philosophical justifications for intellectual property. Included is an analysis and reply to critics or skeptics, and along the way, there are numerous cases and inquiries into topics like AI, information pollution, and censorship. The primary goal of this work in the core Chapters 1–5 is to defend the claim that intellectual property rights are morally justified. In defending several distinct justifications for intellectual property, the hope is that readers will find one or more of these strands to be compelling. Taken in conjunction with the replies offered to intellectual property critics, we arrive at a defensible conclusion.
As a hybrid moral theorist, I have presented these arguments without committing to the more extreme versions of deontology or consequentialism. Extreme deontologists argue that consequences play no role in determining the rightness or wrongness of actions, policies, or institutions, while extreme consequentialists maintain that such judgments are based solely on the goodness or badness of outcomes. That said, deontologists may find the arguments in Chapters 1–3 and 7 more persuasive, while consequentialists might be drawn to Chapters 4 and 5. The Lockean who worries about the consequences of original acquisition has some affinity with the personality theorist who champions personality rights, who in turn has connections with the Millian who adheres to rules that seemingly protect these basic rights. In Chapter 4, I attempt to avoid substantial moral claims and base the argument on individual prudence and rationality. The hope is that by providing several justifications for intellectual property from different perspectives, the conclusion will be more difficult to resist. The arguments in Chapters 1–2 and 4–5 provide the foundations for Anglo-American institutions of intellectual property. If the arguments in Chapter 3 are compelling, we should include the rights of divulgation, attribution, integrity, and withdrawal along with the economic rights of copyright, patent, trademark, and trade secret. Chapter 7 expands the themes found in Chapter 3 to include rights over personality, reputation, and look and feel. Admittedly, there might be a fairly wide array of legal institutions that won’t run counter to the arguments offered herein.
Two arguments inspired by John Locke are offered. In Chapter 1, an argument based on Locke’s proviso that acquisitions must leave “enough and as good” for others is advanced and defended. When an author or inventor creates a new intellectual work, we are, all things considered, bettered by this activity and have no room for rational complaint when excluded from access. The second Lockean argument, discussed in Chapter 2, is based on an individual’s right to self-defense and to defend access to and control over one’s own intellectual efforts. Acts of creation, discovery, and production typically require the investment of time and resources, two of the most valuable commodities that individuals possess. As with other talents, capacities, and products that we create, individuals have the right to defend these values and the income streams secured by them from seizures. Both of these arguments mix elements of deontological and consequentialist commitments.
In Chapter 3, a personality-based justification of intellectual property is explicated and defended. Rather than focusing on incentives and consequences or labor and merit, the personality theorist argues that intellectual property is an extension of individual personality. Authors and creators have the right to control downstream uses of their intellectual efforts that stand apart from straightforward economic considerations. These rights include divulgation, attribution, integrity, and withdrawal. Unlike the hybrid Lockean arguments offered or straightforward consequentialist-based arguments, this argument strand is essentially deontological or duty-based.
Two arguments in this volume are firmly grounded in consequentialist or utilitarian traditions, and yet at the same time, both are resistant to straightforward act-utilitarian counter-arguments. In Chapter 4, rather than arguing that institutions of intellectual property are better than the alternatives, I argue that it is only by adopting certain restrictive institutions that we avoid a prisoner’s dilemma related to the production of intellectual works. If there were no institutions of copyright, patent, trademark, or trade secret, for example, there would be mass copying and a resulting loss of innovative activity. While consequences are important to this strand of justification, it is more narrowly focused on individual prudential considerations than maximizing overall net utility.
In Chapter 5, following John Stuart Mill, I argue that intellectual property rights are justified because legal institutions that codify and protect these rights offer significant advantages compared to alternatives. The incentives generated by protecting intellectual property rights encourage authors and inventors, which benefits society as a whole. The indirect utilitarian is willing to adhere to strategic rules even when breaking a rule in a specific instance might seem to yield better consequences. The Millian concept of fallibility is crucial to this account of our moral obligations. Since humans are fallible, and the rules under consideration are typically tested over decades and across various contexts, we can generally be more confident in these rules than our utility-calculating abilities in any given instance. Such rules are justified by their long-term consequences, and we can regard them as “strategic rules” or rights, which include intellectual property rights.
Arguments purporting to establish the moral foundations of intellectual property have not gone unnoticed by critics. Replies to these critics are offered in Chapter 6. One general argument is that information is a social product and enforcing access restrictions, for example, copyrights or patents, unduly benefits authors and inventors. Individuals are raised in societies that endow them with knowledge, which these individuals then use to create intellectual works of all kinds. On this view, the building blocks of intellectual works are social products. Individuals should not have exclusive and perpetual ownership of the works that they create because these works are built upon the shared knowledge of society. A second common argument focuses on the non-rivalrous nature of intellectual property. Taking your bike deprives you of its use, but this is not true when someone copies your article, process of manufacture, or recipe. Moreover, if the copier would not have purchased the intellectual work in question, then the author or inventor cannot complain about lost income. These, along with several other anti-intellectual property positions, will be analyzed and critiqued. While many of these arguments make for great slogans or soundbites – “intellectual property limits my liberty!” – they fail to stand up to a close reading.
Chapter 7 concludes with an overview of the main argument strands along with some final thoughts about generative AI, information pollution, individual privacy, and the ownership of personal information. When I give you access to my copyrighted poem, I don’t also waive all future claims of control and use of the poem. Granting you access to the poem does not also grant you copyright ownership of it. Similarly, we should begin thinking of informational privacy in the same way. Giving you access to some bit of personal information about me is not to simultaneously waive all future claims over the information in question. We should begin to view informational privacy, along with the look and feel of our creative identities, as a kind of intangible or intellectual property right.
What Is Intellectual Property?
Intellectual property is generally characterized as non-physical property that is the product of cognitive, and sometimes physical, effort.Footnote 13 Without taking a stand on the metaphysical status of ideas, there is a fundamental difference between intellectual property and physical property. While admittedly imprecise, this difference could be understood as a type and token difference. A physical property right gives an owner the right to control access to and use of one specific physical item – a token. An intellectual property right, on the other hand, affords an owner the right to control access to and use of a class of items – a type. For example, a physical property right to use and control a book you have purchased means that you have exclusive control over the book and can justifiably decide what happens to this one physical item. The intellectual property rights to the book in question afford the owner the right to sell you a copy, along with the right to control the ideas that make up the book. No matter what form these ideas take, written in a book, chiseled into stone, saved on a hard drive, an intellectual property owner has the right to control access to and use of the ideas that make up the book – a type. Consider the difference between owning a specific car – a Chevrolet Tahoe, or token – and owning the designs or blueprints that form the set of ideas that make up all Chevy Tahoes that are produced.
At a more practical level, the subject matter of intellectual property is codified in Anglo-American copyright, patent, trade secret, trademark, the law of ideas, as well as in the moral rights granted to authors and inventors within continental European legal systems. Although these systems of property encompass much of what is thought to count as intellectual or intangible property, they do not map out the entire landscape. For example, we might own our reputations. Even so, Anglo-American systems of intellectual property protection, along with certain continental doctrines, provide a rich starting point. We’ll take them up in turn.
Copyright
Anglo-American systems of copyright protection trace their foundations to the Statute of Anne (1710).Footnote 14 The domain of copyright is expression. Section 102 of the 1976 Copyright Act determines the subject matter of copyright protection.
§ 102: (a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.Footnote 15
Works of authorship include literary works; musical works, including any accompanying words; dramatic works, including any accompanying music; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; architectural works; and computer software.Footnote 16
The scope or subject matter of copyright, as protected under federal law or the Copyright Act, is limited in three important respects. First, for something to be protected, it must be original. Thus, the creative process by which an expression comes into being becomes relevant. Even so, the originality requirement has a low threshold. Original in reference to a copyrighted work means that the particular work “owes its origin” to the author and does not mean that the work must be novel, ingenious, or even interesting. Minimally, the work must be the author’s own production – it cannot be the result of copying.Footnote 17 When deciding the issues of originality and copyright infringement, courts examine expressions and not the abstract ideas from which the expressions are derived.Footnote 18
A second requirement that limits the domain of what can be copyrighted is that the expression must be nonutilitarian or nonfunctional in nature. Utilitarian products, or products that are useful for work, fall within the domain of patents. As with the originality requirement, the nonutilitarian requirement has a low threshold because the distinction itself is contentious. An example of an intellectual work that bumps against the nonfunctional requirement is copyright protection of computer software. While a computer program as a whole is functional and useful for producing things, its object code and source code have been deemed to be protectable expressions.
Finally, the subject matter of statutory copyright is concrete expression, meaning that only expressions that are fixed in a tangible and permanent medium can be protected.Footnote 19 The crucial element is that there be a physical embodiment of the work. Moreover, within the system of copyright, the abstract idea or group of ideas that make up an intellectual work is not protected.Footnote 20 Authors’ rights only extend over the actual concrete expression and the derivatives of the expression – not to the abstract ideas themselves. For example, Einstein’s theory of relativity, as expressed in various articles and publications, is not protected under copyright law. Someone else may read these publications and express the theory in her own words and even receive a copyright for her particular expression. The individual who copies abstract theories and expresses them in her own words may be guilty of plagiarism, but she cannot be held liable for copyright infringement. The distinction between the protection of fixed expressions and abstract ideas has led to the merger doctrine: If there is no way to separate the idea from the expression, then a copyright cannot be obtained.Footnote 21 Suppose that I create a new recipe for spicy noodles and there is only one way, or a limited number of ways, to express the idea. If this were the case, then I could not obtain copyright protection because the idea and the expression have been merged. Granting me a copyright to the recipe would amount to granting a right to control the abstract ideas that make up the recipe.
There are five exclusive rights that copyright owners enjoy and three major restrictions on the bundle of rights.Footnote 22 The five rights are the right to reproduce the work, the right to adapt it or derive other works from it, the right to distribute copies of the work, the right to display the work publicly, and the right to perform it publicly.Footnote 23 Each of these rights may be parceled out and sold separately. The Copyright Act says, “The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title.”Footnote 24 Moreover as already mentioned, it is important to note the difference between the owner of a copyright and the owner of a copy. Although the two persons may be the same, they typically are not. Owners of copies, or particular expressions who do not own the copyright, do not enjoy any of the five rights listed earlier. The purchaser of a copy of a book from a publisher may sell or transfer that book, but may not make copies of the book, prepare a screenplay based on the book, or read the book aloud in public.
The three major restrictions on the bundle of rights that surround copyright are fair use, the first sale doctrine, and limited duration. Although the notion of “fair use” is notoriously hard to spell out, it is a generally recognized principle of copyright law. Every author or publisher may make limited use of another’s copyrighted work for such purposes as criticism, comment, news reporting, teaching, scholarship, and research. The enactment of fair use restricts the control that copyright holders would otherwise enjoy. The first sale doctrine limits the rights of copyright holders in controlling the physical manifestations of their work after the first sale.Footnote 25 It says, “Once a work is lawfully transferred the copyright owner’s interest in the material object (the copy or the phonorecord) is extinguished so that the owner of that copy or phonorecord can dispose of it as he or she wishes.”Footnote 26 The first sale rule prevents a copyright holder who has sold copies of the protected work from later interfering with the subsequent sale of those copies. In short, the owners of copies can do what they like with their property short of violating the copyrights mentioned earlier. Finally, the third major restriction on the bundle of rights conferred on copyright holders is that they have a built-in sunset, or limited term. All five rights lapse after the lifetime of the author plus seventy years – or in the case of works for hire, the term is set at ninety-five years from publication or one hundred years from creation, whichever comes first.Footnote 27
Patents
Although many changes have since been made, the Statute of Monopolies (1624) is considered the basis of the British and American patent systems today. Patent protection offers the highest level of protection, granting a 20-year exclusive monopoly over any expression or implementation of the patented work.Footnote 28 Patent law covers the invention and discovery of new and useful processes, machines, articles of manufacture, or compositions of matter. There are three types of patents: utility, design, and plant patents. Utility patents protect new, useful, and nonobvious processes, machines, articles of manufacture, compositions of matter, or improvements thereof. Design patents protect new, original, and ornamental designs for articles of manufacture. Plant patents, on the other hand, protect new plant varieties.
Similar to copyright, patent protection also has limitations. The Patent Act mandates that an invention must be useful, new, and nonobvious. Generally, the usefulness criterion is met if the invention is capable of achieving at least one of its intended functions. Given the costs associated with obtaining a patent, it is reasonable to assume that most machines, manufactured items, and processes fulfill this basic requirement of usefulness.
A more robust requirement on the subject matter of a patent is that the invention defined in the claim for patent protection must be new or novel. There are several categories or events, all defined by statute, that can anticipate and invalidate a claim of a patent.Footnote 29 In general, if the invention was publicly known before the applicant for patent invented it, the novelty requirement will invalidate the patent claim.Footnote 30
The third requirement for patentability, in addition to utility and novelty, is non-obviousness. U.S. patent law stipulates that an invention must not be obvious to a person of ordinary skill in the relevant field at the time it was created. To assess this, a hypothetical individual is envisioned, and the question is posed: “Would this invention be obvious to them?” If the answer is yes, the patent claim does not meet the non-obviousness criterion.Footnote 31
In return for public disclosure and the ensuing dissemination of information that supposedly contributes to social utility, the patent holder is granted the right to make, the right to use, the right to sell, and the right to authorize others to sell the patented item.Footnote 32 Unlike copyright, patent law protects the totality of the idea, expression, and implementation. Moreover, the bundle of rights conferred by a patent excludes others from making, using, or selling the invention. For twenty years the owner of a patent has a complete monopoly over any expression of the idea(s). Like copyright, patent rights lapse after a given period of time. But unlike copyright protection, these rights preclude others who independently invent the same process or machine from being able to patent or market their invention. Thus, obtaining a patent on a new machine excludes others from independently creating their own machine (similar to the first) and securing owner’s rights.
Trade Secret
A trade secret is almost unlimited in terms of the content or subject matter that may be protected and typically relies on private measures, rather than state action, to preserve exclusivity.
A trade secret is any information that can be used in the operation of a business or other enterprise and that is sufficiently valuable and secret to afford an actual or potential economic advantage over others.Footnote 33
Virtually any type of information or intellectual work can qualify for trade secret protection, provided it meets certain definitional criteria. It may be a formula for a chemical compound, a process of manufacturing, a method of treating or preserving materials, a pattern for a machine or other device, or a list of customers.
The two major restrictions on the domain of trade secrets are the requirements of secrecy and competitive advantage. Secrecy is determined in reference to the following three rules of thumb: an intellectual work is not a secret (1) if it is generally known within the industry; (2) if it is published in trade journals, reference books, or elsewhere; or (3) if it is readily copyable from products on the market. If the owner of a trade secret distributes a product that discloses the secret in any way, then trade secret protection is lost.Footnote 34 Competitive advantage is a weaker requirement and is satisfied so long as a company or owner obtains some benefit from the trade secret. Finally, trade secret rights do not stop others from independently inventing or discovering the same information. As long as the secret is maintained, trade secret owners hold management rights and are safeguarded against misappropriation, which is particularly crucial in light of the increasing instances of industrial espionage and employee theft of intellectual property.
Trademark
The subject matter of trademark law primarily concerns the goodwill or reputation of a company.Footnote 35 A trademark can be any word, name, symbol, device, or combination thereof used by a manufacturer or merchant to identify their goods and distinguish them from those of others. According to the Federal Trademark Act, trademark law serves two key purposes.
One is to protect the public so it may be confident that, in purchasing a product bearing a particular trademark which it favorably knows, it will get the product which is asked for and wants to get. Secondly, where the owner of a trademark has spent energy, time, and money in presenting to the public the product, he is protected in his investment from its misappropriation by pirates and cheats.Footnote 36
A major restriction on what can count as a trademark is whether or not the symbol is used in everyday language. In this respect, owners of trademarks do not want their symbols to become too widely used, because once this occurs, the trademark lapses. An example of this restriction eliminating a word from trademark protection is aspirin – as the word became a part of the common culture rights to exclusively use the trademark lapsed.Footnote 37
Ownership of a trademark confers upon the property holder the right to use a particular mark or symbol and the right to exclude others from using the same mark or symbol. The test for infringement is confusing similarity.Footnote 38 The duration of these rights is limited only in cases where the mark or symbol ceases to represent a company or becomes entrenched as part of the common language or culture.
The Law of Ideas
Beyond the frameworks of copyright, patent, trademark, and trade secret law, there exists a body of case law known as the law of ideas, which allows individuals to protect ideas as personal property. A well-known case in this area is Buchwald v. Paramount Pictures, involving the Eddie Murphy film Coming to America.Footnote 39 In this case, Art Buchwald pitched an idea to Paramount Pictures, and the parties agreed that if a film was produced based on his concept, he would be compensated. After years of stalled negotiations, Paramount informed Buchwald that his idea would not be used. However, shortly after Coming to America was released, with credit given to Eddie Murphy. Although the film reported financial losses, Buchwald sued and successfully received compensation.
The law of ideas is typically applied in cases where individuals, who are unaffiliated with companies, produce ideas and submit them to corporations expecting to be compensated for any use thereof. In certain cases, others who use these ideas without authorization have misappropriated property and can be prevented from using or disclosing the ideas until they have compensated the idea owners. Before concluding that an author has property rights in her idea(s), courts require the idea(s) to be novel or original and concrete. Compensation is offered only in cases of misappropriation.Footnote 40
Ideas do not need to meet a stringent standard of novelty to qualify for protection as property. At a minimum, the idea must show enough novelty and originality to prove it was not copied and holds value for its creator. The requirement of concreteness further limits what can be protected, mandating that the idea be fixed in a tangible form and sufficiently developed, or mature. While fixation is similar to the requirement in copyright law, maturity involves a higher threshold. Broad or vague ideas, or those requiring significant additional research or development, are not considered mature enough for protection. Ultimately, whether an idea is protectable is determined on a case-by-case basis within these guidelines.
Idea owners have complete control over their property, with the exception of excluding others from obtaining rights to the same idea through independent creation. Thus, the rights conferred on property holders in this system are similar to the conjunction of rights conferred on holders of copyrights and trade secrets.
Moral Rights: Continental Systems of Intellectual Property
Article 6bis of the Berne Convention captures the notion of moral rights that are included in continental European intellectual property law. It says,
Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.Footnote 41
The doctrine protects the personal rights of creators, as distinguished from their economic rights, and is generally known in France as droits morals or moral rights. These moral rights consist of the right to create and to publish in any form desired, the creator’s right to claim the authorship of his work, the right to prevent any deformation, mutilation, or other modification thereof, the right to withdraw and destroy the work, the prohibition against excessive criticism, and the prohibition against all other injuries to the creator’s personality.Footnote 42 Much of this doctrine has been incorporated in the Berne Convention:
When the artist creates, be he an author, a painter, a sculptor, an architect or a musician, he does more than bring into the world a unique object having only exploitive possibilities; he projects into the world part of his personality and subjects it to the ravages of public use. There are possibilities of injury to the creator other than merely economic ones; these the copyright statute does not protect.Footnote 43
It should be noted that granting moral rights of this sort goes beyond a mere expansion of the rights conferred on property holders within the Anglo-American tradition. While many of the moral rights listed earlier could be incorporated into copyright and patent law, the overall content of these moral rights suggests a new domain of intellectual property protection. The suggestion is that individuals can have intellectual property rights involving their personality, name, and public standing. This new domain of moral rights stands outside of the economic- and utilitarian-based rights granted within the Anglo-American tradition.
Conclusion
Anglo-American systems of intellectual property are typically modeled as utilitarian.Footnote 44 It is argued that adopting the systems of copyright, patent, trade secret, and trademark leads to an optimal amount of intellectual works being produced and a corresponding optimal amount of social utility. Granting use, possession, and control rights to both ideas and expressions of ideas is important as an incentive for the production of intellectual works. The purpose of copyright, patent, trademark, and trade secret institutions is to “promote the progress of Science and the useful Arts.”Footnote 45
Many utilitarians argue that private ownership of physical goods is justified because of the tragedy of the commons or problems with efficiency. Systems of private property are more efficient, or so it is argued, than systems of common ownership. It should be clear that this way of arguing is also based on providing incentives. Owners of physical goods are given an incentive to maintain or increase the value of their property, because the costs of waste and the benefits of productive activity are internalized. The incentives-based utilitarian argument for intellectual property protection is very similar. In this case, the government grants rights as an incentive for the production of intellectual works, and production of this sort, in turn, maximizes social progress.
While I have argued that incentives-based utilitarian arguments for systems of intellectual property are problematic, these arguments are not implausible.Footnote 46 But, when viewed as state-created legal instruments detached from moral foundations, the institutions of copyright, patent, trademark, and trade secret are generally viewed as tools deployed and used by the economically advantaged. Such arrangements appear to be unjustified while at the same time protecting wealth, status, and privilege.Footnote 47 The upshot of viewing intellectual property rights as state-created monopolies, far too often controlled by the powerful and well-connected, is the seemingly pervasive opinion that systems of intellectual property represent the mafia family on a global scale. On the other side of this debate are authors and inventors who invest significant amounts of time and resources to create products and services that we find valuable. Copiers desire to obtain these valuable products and avoid the investment. I will argue that intellectual property rights should not be seen as state-created entities designed to limit access while lacking any plausible moral foundation. On grounds of labor, desert, incentives to innovate, contract, and individual prudence, we each have good reasons to protect and promote the efforts of authors and inventors.
