Can Intellectual Property Law Regulate Behavior? A 'Modest Proposal' for Weakening Unclean Hands

Abstract

Surprisingly, current intellectual property law protects materials that are criminally prohibited or were made as a result of illegal criminal actions. Thus, a filmmaker may commit or induce various illegal acts, record them, and receive and enforce a copyright on the depictions, just as a corporation may patent drugs developed with stolen materials or through illegal experiments on human subjects. That creators who produce works with unclean hands may enjoy the benefits of federally protected monopolies is an oddity that requires scrutiny. This paper argues that a potential remedy to this situation would be the use of compliance conditions for copyright registration and patent grants.

Though compliance conditions could be crafted in various ways, this paper suggests adopting federal legislation that would invalidate a copyright registration or a patent if the creator (or her agent) violated specific criminal laws in the immediate production of the material for which the protection is sought. Once implemented, compliance conditions might stop intellectual property laws from contributing, even remotely, to illegal conduct. This proposal also raises the more general question of when it is desirable to use one governmental function to aid the legitimate purposes of another. Thus, the viability of a compliance standard has potential implications for how we think about the disbursement of government privileges more broadly.

The paper begins by examining how certain intellectual property doctrines already manifest some concern for compliance with various public policies. It then assesses the constitutionality of compliance conditions in intellectual property law and concludes by discussing the mechanics of implementing and administering a compliance standard in the more difficult context of copyright law. The paper ends with a suggestion of how a compliance standard can be justified.

Keywords: Intellectual property, regulation of behavior, criminal law