The Distributive Effects of IP Registration
69 Pages Posted: 21 Jan 2021
Date Written: January 21, 2021
Although the law often seeks to level the playing field, all too often the law has the opposite effect and tilts the playing field in favor of some over others.
Intellectual property law is no different. This article focuses in particular on the registration of intellectual property (IP) rights, which has long been a prerequisite for full protection under patent, trademark, and copyright law. Registering IP rights yields significant advantages, but it also imposes significant costs, which in turn may create distributive effects by hindering some more than others. Acknowledging IP rights without registration can therefore be a more egalitarian way of protecting innovation and creativity.
Indeed, some forms of IP—specifically copyright and trademark—allow for both registered and unregistered rights. Yet this article is the first to explore the distributive implications of such two-tiered regimes. On the one hand, register-ing IP rights helps provide the public with notice of those rights and their (approximate) boundaries. Some registration systems, such as those in U.S. patent and trademark law, also examine whether the work in question substantively qualifies for protection. On the other hand, registration of IP rights can be not only a complex and costly process (particularly for patent rights) but also one fraught with inherent biases. Requiring registration of IP rights therefore has serious negative implications for women, racial minorities, and other disadvantaged creators. Protection of IP rights without registration, by contrast, gives creators of innovative works greater access to IP protections and the consequent possibility of leveraging the value of their own works.
Until the gender, racial, economic, and other gaps in IP rights are remedied, maintaining a two-tiered regime of both registered and unregistered rights for all forms of IP alongside minimizing the gaps between registered and unregistered rights offers a promising way to level the playing field for creators of protectable works. We therefore propose not only more equality in the treatment of registered and unregistered rights in copyright and trademark but also the creation of an unregistered rights regime in patent law to provide automatic rights in patentable inventions, albeit for a very short period of time and only against direct copying. These measures, in combination with other efforts to level the playing field for creators, could go a long way toward a more egalitarian distribution of benefits from innovation and creativity.
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