Drake IP 2013: Deidre Keller, ‘Why intellectual property needs property’

Liveblogged from Drake IP Roundtable 2013.

Deidre Keller makes the argument that IP is property, and maybe that’s not such a bad thing. If we appreciate property in a more nuanced sense, the fact that it is property is less trouble. Keller argues that limitations from property should inform limitations in copyright, patents, and trade mark.

Blackstonian view of property is not true – the right to exclude is more limited. In particular, IP could learn from the principles of:

  • eminent domain;
  • public trust doctrine; and
  • abandonment.

Keller focuses on abandonment: the voluntary relinquishment of property interests absent an intended successor. Abandonment is not forfeiture, it is not gifts, it is not a conveyance.

Patentable subject matter can be abandoned – 35 USC 102(c) removes entitlement where inventor has abandoned the invention – but there is little case law.

Learned Hand made a point that copyright can also be abandoned. Publishing without notice relinquishes copyright works into the public domain. After Berne removed the need for formalities, courts are now struggling to understand how a copyright owner may have demonstrated an intent to relinquish the copyright interest. It turns out to be really hard to relinquish an interest in copyright. In one case, the copyright owner said “I don’t care about copyright protection”, “I have given the work tot he public”, “I have never tried to enforce this copyright”. The court still said that there was a question of fact as to whether he had intended to relinquish his interests in copyright. In another case, a copyright owner stamped an intent to relinquish on a work — the copyright on this will expire in two days — which was successful.

Q (Steven Wilf): Abandonment may not be unitary. Think about abandonware?

Q: Why do we care about abandonment in copyright?
A: At least in part because of the orphan works problem. Abandonment may be an answer to that problem. The bigger reason, though, is because the idea that you can abandon property is a counter to the argument that property rights are unlimited in scope.

Q: Perhaps consider Creative Commons and the CC-Zero public domain dedication. Outside of the US, something to be aware of is that moral rights regime may restrict the ability of copyright owners to abandon their moral rights.

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