Understanding Intellectual Property: Expression, Function, and Individuation
70 Journal of the Copyright Society of the USA (forthcoming 2023).
57 Pages Posted: 2 Aug 2021 Last revised: 10 Sep 2022
Date Written: July 27, 2021
Underlying the fundamental structure of intellectual property law—specifically, the division between copyright and patent law—are at least two substantive philosophical assumptions. The first is that the artistic works and inventions are importantly different, warranting differently structured legal regimes: copyright on the one hand, and patent on the other. And the second is that particular artistic works and inventions can be determinately individuated from each other, thereby being subjects of distinct legal rights. But neither the law nor existing scholarship provides a comprehensive analysis of these categories, what distinguishes them, or why their distinctions should matter to law. This Article defends a novel theory substantiating and unifying these assumptions: that artistic works are author-individuated, whereas inventions are structure-individuated. In other words, drawing on philosophical thinking, thought experiments, and existing practices surrounding expression and functionality, this Articles argues that two acts of authorship cannot result in the same artistic work (only "structurally identical" works), but two acts of invention can result in the same invention. The Article then explains how these “individuation theses” vindicate certain core features of intellectual property law, as well as what they mean for different theories of what justifies intellectual property rights. Finally, the Article teases apart possible implications from the individuation theses for refining existing doctrine, including for copyrights’ and patents’ structures, domains, and rules for works with expressive and functional overlap. It concludes by outlining complications that the individuation theses raise for theorizing about authorship and functionality in future work.
Keywords: intellectual property, patent law, copyright law, legal philosophy, law & philosophy, legal theory, property, torts, property theory, moral philosophy, political philosophy, aesthetics, metaphysics
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