The Problem with Intellectual Property Rights: Subject Matter Expansion

ABSTRACT This article examines the expansion of the subject matter that can be protected under intellectual property law. Intellectual property law has developed legal rules that carefully balance competing interests. The goal has long been to provide enough legal protection to maximize incentives to engage in creative and innovative activities while also providing rules and doctrines that minimize the effect on the commercial marketplace and minimize interference with the free flow of ideas generally. The expansive view of subject matter protectable via intellectual property law has erased the clear delineation between patent, copyright, and trademark law. This has led to overprotection of intellectual property in the form of overlaps which allow multiple bodies of intellectual property law to simultaneously protect the same subject matter. Such overlapping protection is problematic because it interferes with the carefully developed doctrines that have evolved over time to balance the private property rights in intellectual creations against public access to such creations. This article will examine the competing policies that underlie the various branches of intellectual property law. It will then discuss the expanding domain of subject matter protected by patent, copyright, and trademark law. Finally, it will examine the overlaps that exist under patent, copyright, and trademark law and the resulting problems with regard to software, clothing, computer icons, graphical computer interfaces, music, and useful commercial products. TABLE OF CONTENTS INTRODUCTION I. BALANCING PRIVATE PROPERTY RIGHTS AND THE PUBLIC DOMAIN A. Background B. Historical Basis for the Balancing Approach 1. Patent and Copyright Law 2. Trademark Law II. THE EXPANDING DOMAIN OF INTELLECTUAL PROPERTY LAW A. Patent Law B. Copyright Law 1. Subject Matter Expansion 2. Increasing Duration of the Term of Protection C. Trademark Law III. OVERLAPPING PROTECTION A. Software B. Clothing C. Computer Icons and Graphical User Interfaces D. Music E. iPods and Other Commercial Products CONCLUSION INTRODUCTION At its most basic level, intellectual property refers to ideas or information that spring from a person's mind. (1) Such know-how is necessary for research, for artistic and creative endeavors, for basic activities most of us engage in, and for operating business enterprises. The importance of such intangible property creates a conundrum, however. Proponents of broad legal protection for intellectual property generally argue that such protection is necessary to incentivize investment in creative and innovative activities that ultimately benefit society. (2) In a capitalist economic system, this argument has merit. Failure to provide property protection may negatively impact the ability to generate a return on investment and hence substantial capital outlays for such activities might be diminished. In contrast, proponents of more limited intellectual property rights argue that in a free society any state-granted property rights in intellectual creations should be minimized. This will enable the free flow of ideas and information for the benefit of society. (3) This argument has merit because allowing private parties to own ideas and information can interfere with marketplace competition (4) and with public access to intellectual property. Such access is important to enhance creative and innovative advances, which tend to build on what has gone before. (5) The free flow of information and ideas is also necessary for a robust free society to flourish. (6) Over several centuries, intellectual property law has developed legal rules that carefully balance the above competing interests. The goal has long been to provide enough legal protection to maximize incentives to engage in creative and innovative activities while also providing rules and doctrines that minimize the effect on the commercial marketplace and minimize interference with the free flow of ideas generally. …