Misappropriation as a Third Intellectual Property Paradigm
16 Pages Posted: 30 May 2009
Date Written: 1994
The digital age brings with it increasing varieties of products that are costly to produce but arguably vulnerable to cheap and rapid copying. An absence of legal protection acts as a disincentive to investment in the development of such products. Since patent law protects only nonobvious advances in applied functionality and traditional copyright law abjures the protection of function, products of human intellectual activity falling outside these two primary regimes of protection have been left to their fate under trade secret and unfair competition law or to the vagaries of the free market. A third general paradigm can be constructed that better balances creation incentives against free use and efficient development by analyzing the problem under the term: misappropriation. Vulnerability to misappropriation is where competitive products can cheaply and rapidly be brought into production after the original appears on the market. A focus on methods of copying better directs us toward appropriate regulatory goals in cases of market failure than other approaches.
Neither strong similarity nor even complete identity of the final products leads to a finding of infringement of the antimisappropriation right. Rather, infringement determinations must be based on misappropriative methods of copying that, if permitted, would too severely undercut the incentives to create products vulnerable to such methods. This article uses functionality as the dividing line between the traditional universes of patent and copyright subject matter and explains how market failure can result from this traditional division of labor. It also explains how those market failures inhere in unfair methods of copying, as opposed to the nature of the products copied. It also considers the possibility of extending copyright to cover future market failures relating to software, without adopting a full-blown new paradigm. Additionally, it outlines the primary issues involved in creating a third intellectual property paradigm based on the concept of misappropriation.
Keywords: Misappropriation, Copyright, Software
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