Copyright 2013 Tonya M. Evans (published by Marquette Intellectual Property Law Review)
Credit: Leaping Lion Photography
“With the advent of the Internet and digital technology, the twenty-first century has ushered in a quantum increase in the ways to create, disseminate, and commercially exploit creativity. Digital technology allows anyone to create perfect digital copies of protected works in the comfort of their homes and to distribute them to tens, hundreds, thousands, and even millions of people with the click of a hyperlink via a handheld device. Indeed, copyright touches more ordinary people in substantial ways in this age of information than at any other time in American copyright history.
[….]
This Article asserts that copyright reform initiatives should “sample” (that is, borrow from) patent policies that protect access for further innovation to “remix” (that is, inform and reform) copyright law for the same end in the creative context. Throughout the Article, I use appropriation art to illustrate how an established cumulative medium of artistic creation is negatively impacted by overly restrictive copyright laws and may benefit from patent policies seemingly more well suited to encourage and support such creative innovation.
Copyright has already borrowed from its constitutional cousin in creating a misuse doctrine, for example. I assert other patent policies and practices are ripe for the borrowing. Patent policy, despite its own problems to be sure, still presents as more a robust, well-defined and generally a more efficient system of incentives to create. This approach both empowers creators to access and make use of existing works for certain purposes and at the same time still protects rights holders in a way that honors the Constitutional directive to secure certain exclusive rights. Such an approach is particularly vital for traditionally collaborative and cumulative creative mediums that produce musical, dramatic and audiovisual works. Accordingly, patent policy should be “sampled” to “remix” copyright.
Part I explores the problems of applying a twentieth century legal framework to twenty-first century “creative innovation”, as I describe it, and the benefits of second-generation creative output. In this Part, I put a finer point on the general observations noted throughout this Article by way of the “appropriation art” example. I highlight the different outcome an appropriation artist might experience when her creative effort is protected under “patentesque” policies that better protect use of existing works for the purpose of further creation in contrast to the result under the current copyright framework.
Part II of this Article explores copyright and patent laws as distinct legal regimes. This Part addresses the historical underpinnings of intellectual property protection generally and how both regimes developed as mostly distinct entities until software emerged. In the case of copyright, I also address the impact of Congressional overprotection coupled with the additional private fences erected by rights holders via technological and contractual measures to further extend the reach of their exclusive rights beyond what copyright actually protects.
Part III provides a brief history of the role of reverse-engineering in the inventive context under trade secret law and as applied to digital goods under patent, copyright and a hybrid regime, the Semiconductor Chip Protection Act. Further, I examine briefly how reverse engineering is used in the video game industry and digital music production to support further innovation and to apply my theoretical assertions not just to literary and artistic productions but to the process of creation itself. Finally, this Part highlights the role of misuse in both the copyright and patent contexts as an alternative approach courts have used to limit both monopolies with, admittedly, varying degrees of success. Strong recognition of the copyright misuse doctrine, I argue, would protect cumulative creation in genres like appropriation art that benefit from, and have traditionally relied on, such in a way that causes little, if any, market harm to the rights holder.
Finally, Part IV explores the blurring of the distinction between copyright and patent protection in the digital age. This Part challenges historic notions of the bright-lined semantic demarcation between the terms “innovation” (traditionally attributed to patent law) and “creativity” (traditionally linked to copyright law). Because computer programs are afforded both copyright and patent protection, for example, Congress and the Supreme Court have and continue to blur the distinction traditionally made in the subject matter of both regimes. Given the current legislative, judicial and technological cross-pollination of innovation and creativity in crafting, adjudicating and applying copyright law, this twenty-first century trend – indeed, this reality – should be embraced rather than resisted.”
The Marquette Intellectual Property Law Review is a student-edited journal dedicated to encouraging critical, reflective thinking by scholars and practitioners regarding important cutting-edge issues in intellectual property law. The Marquette Intellectual Property Law Review provides a forum for scholarly discourse on important issues that face both domestic and international intellectual property attorneys today.
