Cabining Intellectual Property Through a Property Paradigm

Abstract

One of the most revolutionary legal changes in the past generation has been the propertization of intellectual property (IP). Rights, duration, and subject matter expand without limit, and courts and companies treat IP as absolute property, bereft of any restraints. But astonishingly, scholars have not yet recognized that propertization can also lead to the narrowing of intellectual property. In contrast to much of the literature, which criticizes the propertization of IP, this Article takes it as a given. For the transformation is irreversible, sinking its tentacles further into public and corporate consciousness (as well as the IP laws) with each passing day, and precluding the likelihood that we will return to the pre-propertization era. This Article therefore ventures onto a new path, one that follows property into unexpected briar patches of limits. The secret here is that property is not as absolute as it is often claimed to be.

After surveying fifty doctrines in property law, Professor Carrier synthesizes limits based on development, necessity, and equity. He then utilizes these limits to construct a new paradigm for intellectual property. The paradigm facilitates the reorganization of defenses currently recognized by courts as well as a more robust set of defenses, which include (1) a new tripartite fair use doctrine in copyright law, (2) a new defense for public health emergencies and a recovered experimental use defense and reverse doctrine of equivalents in patent law, (3) a development-based limit to trademark dilution, and (4) a functional use defense for the right of publicity. By adopting the paradigm of property, intellectual property has opened the door to limits. The time has come to rediscover these limits. The future of innovation and democracy lie in the balance.

Keywords: Intellectual property, property, propertization, patent, copyright, trademark, right of publicity

JEL Classification: K12, K20, O30, O31, O33, O34