A pasture theory of creative controls: a new approach to copyright and patent subject matter overgrowth.

Author:Meese, Maximilian

TABLE OF CONTENTS INTRODUCTION I. A PASTURE THEORY OF SUBJECT MATTER DEFINITION II. THE AGGRESSIVE EXPANSION OF COPYRIGHT LAW A. The Rightful Place of Copyright Law B. Copyright in Architecture C. Copyright in Computer Programs III. THE SLOW CREEP OF PATENT PROTECTIONS A. The Rightful Place of Patent Law B. Patent Law in Business Methods C. Patent Law in Quasi-Natural Discoveries IV. DEBUNKING COMMON COUNTERARGUMENTS A. The Legitimacy of Design Patents B. The Elusion of Peaceful Overlap C. Legislative & Historical Interpretation CONCLUSION: REDEFINING FROM THE START INTRODUCTION

In the many years since their inception in 1787, (1) American copyright and patent law have each grown beyond their original meager bounds. Generations have struggled over the proper way to cabin and define such a simple, but empowering phrase: (2) "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (3) From this singular point, numerous legislative amendments and common law rulings pulled the boundary lines wider. (4) As technology began rapidly progressing in the twentieth century, the subject matter jurisdictions of copyright and patent law saw healthy--and arguably gluttonous--growth. (5) Whether the speed of progress, lack of understanding by adjudicators, or disagreement among intellectual property scholars have separately or jointly contributed to the expansion, the implications are clear: the defining lines are neither definite nor linear. In response, this Note establishes two overarching goals: (1) to properly relegate copyright and patent law to their own separate fields; and (2) to prevent either form of intellectual property protection from absorbing sui generis (6) territory unconfronted as new areas of idea and expression emerge.

To put the problem of subject matter overgrowth in perspective, imagine that a few decades from now a brilliant young architecture student is visiting Los Angeles for the first time. While on a city tour, the student is inspired by the sights, in awe of how artistic some of the buildings are. Nothing compares, however, to the beauty of one particularly magnificent concert hall, resplendently covered in steel and glass that artfully twists across the building's surface. (7) The student, taken in, leaves the city with a book full of sketches of that building--an important milestone in her career. All of her future work, whether designing office buildings or public parks, is inspired and clearly reminiscent of her singular inspiration. But one day, her inspiration turns to consternation, when a legalese-laden letter crosses her desk. She is being sued for copyright infringement of the concert hall's design, for producing unlicensed derivative works. "But these are buildings, bridges, and walkways," she wonders, "they are functional, physical, and purposeful. They are much more than simple paintings or poems!" But here, one man's monopoly on the design has become another's complete restraint of creative expression. And it is all because lawmakers have let the subject matter of copyright sprawl to the point of choking out its once noble goal: the pursuit of progress in the arts. This (albeit sensationalized) future will not seem so foreign if Congress does not trim back and redefine copyright and patent protections at their roots--their core subject matter. In other words, instead of Congress or the courts continually adjusting the round hole to accommodate the square peg, they should consider, perhaps, introducing a square hole.

The existence of subject matter overgrowth is by no means a novel realization, though it is not often discussed. Andrew Beckerman-Rodau has pointed out in detail the boundary bleeding between copyright, trademark, and patent law. (8) Though he delves into a discussion of reasons why this expansion may have occurred (a subject beyond the scope of this Note), he concludes that academics have not properly prioritized the balancing of the intellectual property fields. (9) In response to scholars like Beckerman-Rodau, this Note goes a step further and seeks to become that balancing force. By creating independent fields to hold the subject matter of copyright and patent law, and applying strict rules as to what matter may reside within the boundaries of those fields, questions of what each law may protect would be resolved by looking at the fields themselves. Unlike prior solutions that may focus on evolving legal tests, this Note looks to set the barest definitions of copyrightable and patentable subject matter. Beginning with properly defined subject matter may secure a leash to the wild dog of expansive intellectual property protections.

This Note further rejects the notion that the law should embrace extensive overlap between copyrights and patents. Some scholars view the expansion as complementary protection, a way of affording an author the full spectrum of legal rights to their work. (10) To the contrary, this Note asserts that embracing the overlap is instead apathy toward poorly defined subject matter. The overlap ought to be minimized, and various components of a creative work should fall into clear-cut bins of separate protection. In doing so, authors and inventors will no longer toe the line between necessary control and needless monopoly over their creations.

This Note proceeds in four parts. Part I explains Pasture Theory as a new approach to subject matter definition. (11) It will go beyond the traditional concepts of "idea" and "expression" (12) through a metaphor of allocating works to discrete fields. Part II discusses the expansion of copyright law and explains its rightful place as nested in Pasture Theory. It discusses how the new theory would resolve practical applications of copyright in architecture and computer programming. Part III similarly discusses the slow creep of patent law protections and how this theory would define and control it. It also addresses patent law's place in computer interface design, as well as nonphysical creations. Finally, Part IV seeks to address some of the major counterarguments to cutting back the intertwining of copyright and patent law. Specifically, it will assert the nuanced legitimacy of design patents, confront the illusion of peaceful overlap in intellectual property law, and draw support for Pasture Theory through constitutional and statutory history.


    The legal rules of copyright and patent law operate on specific subject matter. Subject matter, unlike the rules or laws themselves, answers the question of "What exactly do these rules govern?" Pasture Theory (13) is designed to address the problem of overlap between copyright and patent at its source--the subject matter itself. Pasture Theory, as a visual metaphor for subject matter definition, begins with a broad view of intellectual property law: a body of law to protect ideas in their various forms. This sets the stage for the universe in which Pasture Theory operates: the subject matter of ideas, or intellectual property. Before any defining or organizing begins, ideas--in any stage of expression, creation, production, or fruition--float freely about, unprotected, without boundaries. It may be helpful to picture Pasture Theory as an imagined landscape, where different kinds of intellectual property are the inhabitants of this new world. (14) And Pasture Theory's first step to protecting those inhabitants is placing them in pastures with clearly delineated fencing.

    The first pasture is for copyright law. This pasture is defined by "the expression of ideas." (15) Out of the wide universe, the only entrants to this domain are expressions, and expressions alone. Expressions may be physical, like a statue, but their tangible features must act only as a vehicle for their expression. All poems, all songs, all stories, all pictures, and all paintings--however formed and however inspired--romp freely through the field of "expression." This does not mean, however, that all of these expressions may, in the end, achieve the safeguards of copyright law. (16) They are merely a pool of candidates from which few obtain the prize of copyright protection. It is also important to note that these expressions should not, by themselves, perform a function. (17)

    The method of selection from this pasture is then governed by a set of rules. The history of applicable copyright law is extensive and occasionally contradictory, but at a minimum, it may be summed up as this: any expression that is original to the author is worthy of protection. (18) So, from the field of all expressions, ignore any that take directly from another expression. All expressions that are copies of the ones before and all derivative works (19) are overlooked. The victors are a subset from this field of expression--the authors to which are granted special authority over how others may use their works. To be sure, it may be tempting to apply this body of copyright rules to another pasture; it may be convenient or seemingly intuitive to do so. However, it is important that copyright law begins with its own pasture and applies its own rules to determine those worthy of protection.

    Of course, the rules of copyright law themselves are rife with nuance: publication, licensing, fair use, and parody have their own applicable elements and are all proper subjects of their own scholarly discussions. Pasture Theory is simply a framework upon which these rules act and select the victors.

    Neighboring the pasture of "expression" is a pasture of "fruition." (20) Here one will find no mere descriptions, no simple suggestions of ideas. (21) Only concrete creations exist in this pasture. Any object that exists in the world, that itself has mass and weight, exists in this field. Also grazing here are the offspring of the concrete: any processes that are...

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