The Making of the Post-War Paradigm in American Intellectual Property Law

Abstract:     
During the New Deal period, intellectual property underwent a transformation. Copyright was recast from literary property to industrial property; trademark shifted from a common law tort of palming off to a regulatory regime for a mass consumer economy, and patent law was rethought to accommodate corporate invention. This essay begins by examining the advantages of looking at intellectual property as deeply situated in New Deal debates over political economy, and calls for a new history of intellectual property very different from conventional narratives moored in the introduction of new technologies. More broadly, it suggests that examining foundational past policy debates, and the ways these are contingent upon political, economic, and social change, might allow us to understand possible alternatives more clearly than absolute claims constructed using philosophical or economic justifications. The New Deal period has particularly important implications because it marked the beginning of the rapid expansion of intellectual property protection. Adapting intellectual property protection to an industrial economy, four features distinguished this new capacious conception of the products of knowledge, which I call the post-war paradigm: intellectual property becomes a national and international enterprise, propertized intellectual property is subject to modern regulatory interventions, Progressive Era anti-competitive anxieties in trademark and copyright decline - though these continue to prevail through the middle of the twentieth-century in the area of patent law, and intellectual property is envisioned as an economic motor for sustaining growth in developed economies. This article attempts to recover the complexity and the experimentation characteristic of these changes. It emphasizes the ways the post-war paradigm in intellectual property, which we continue to inhabit, extends property protection as it confers a major economic role for products of knowledge. Nevertheless, I also suggest that we have ignored other New Deal legacies: the use of limits, especially anti-competition law, as mechanisms to curb corporation leveraging of rights in markets, the preoccupation with distributive justice in the fields of trademark, copyright, and patent, and, most notably, the New Deal project of combining economic and civic elements of intellectual property to construct a modern form of citizenship.

Keywords: Intellectual Property, Legal History, History of Copyright, Industrial Design, Antitrust, Law & Humanities, Trademark, Patent, History of Technology

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