CHAPTER 7 - § 7.06

• Jurisdiction: United States

§ 7.06 THE "RIGHT TO COPY" DOCTRINE

The overlap in protection afforded by the various types of intellectual property described above has sometimes created a legal tension. The so-called "right to copy" is less a doctrine (because it has little basis in any reported case law decisions) and more an argument advanced by proponents of the limited monopoly afforded to patents and defendants accused of trade dress infringement.⁶¹ One commentator, Perry J. Saidman follows this issue closely and has authored several insightful articles on the topic.⁶² While Saidman's arguments in favor of a "right to copy" are certainly well reasoned, they fail to meaningfully consider the differing roles that patents and trade dress play within intellectual property law and the disparate requirements for obtaining each type of protection.

It has long been recognized that there exists a fundamental right to compete through "imitation of a competitor's product."⁶³ This fundamental right to imitate or copy, however, is not without its limits. Intellectual property rights such as those discussed above may be used to temporarily restrict or limit a competitor's ability to copy. Once such temporary restrictions expire, however, the subject of the particular intellectual property rights is deemed dedicated to the public, to be freely copied and exploited. This dedication to the public of once-protected subject matter forms the basis for the "right to copy" doctrine.

The right to copy stems from long-standing principles aimed at preserving and promoting free competition in the marketplace. These principles include, for example, the public's inherent right to freely reproduce and copy that which is in the public domain. Indeed, courts have long recognized copying as a legitimate competitive activity,⁶⁴ even when the copying involves a competitor's products.⁶⁵ Other courts have characterized copying as a federal right that is essential for effective (and free) competition.⁶⁶

Like most federal rights, however, the right to copy is not limitless. Intellectual property rights such as patents and copyrights, for example, may be used to limit or restrict the right to copy by imposing temporary "zones of exclusivity" during which the right to copy is suspended.⁶⁷ In the case of patents, for instance, inventors are granted a limited monopoly period during which they may exclude others from making, using, selling, offering to sell, or importing (i.e., from copying) a patented invention or design.⁶⁸ A similar limited monopoly is granted to authors in the form of a copyright, which may be used to exclude others from copying, distributing, performing, or displaying copyrighted works.⁶⁹

Once these limited monopolies expire, however, the right to exclude others also expires. In the case of patents, for example, expiration of a patent's term not only operates to terminate the limited monopoly created by it; it also vests in the public a right to copy, make, and use the thing once covered by the patent.⁷⁰ In fact, it is on this condition that patents are granted in the first place.⁷¹

It is well established that patents are granted as part of a "carefully crafted bargain" to encourage innovation at the price of granting a limited monopoly.⁷² A prerequisite of this bargain is the preservation of free competition of the public domain.⁷³ As one court noted, "[E]ffective competition and the penumbra of the patent laws require that competitors be able to slavishly copy the design of a successful product."⁷⁴ Thus, once a patent expires, the second half of the "carefully crafted bargain" becomes due, and the item once given patent protection now becomes a part of the public domain.

A similar rationale applies to copyrights, which, as noted above, also provide limited monopolies as a means of encouraging innovation.⁷⁵ Like the "carefully crafted bargain" pertaining to patents, expiration of a copyright requires...