Definition of patent and Copyright

Rethinking Copyright Too?  September 15, 2014 – 02:24 pm
Slinky Malinki's Christmas

Copyright and patent law are different animals, but they share the same Constitutional DNA—the brief clause empowering Congress 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." The differences are many, of course, and they have only grown more pronounced in the centuries since the Progress Clause was framed. Some are relatively mechanical, such as the difference in the specific "limited times" of the rights, which has widened vastly as the copyright term stretched to its present day length of four or five times patent's. Others are more profound, signaled, for instance, by the doubts raised lately by the Supreme Court as to whether the social quid quo pro undergirding patents applies in the same way or even at all to copyrights (see Eldred v. Ashcroft). Yet as those very doubts suggest, the two doctrines remain forever linked, conceptually and historically, and more than ever the sorting out of their similarities and differences sustains a cottage industry of commentary.

Though Feldman's rethinking of patent law doesn't propose to add to that line of thought, I wonder if it couldn't usefully be extended to it. In particular, I wonder if Feldman's key observation about patents—i.e., that they grant a peculiarly contingent right, not so much defining its bounds as inviting parties to bargain over its definition—doesn't also apply to copyrights.

Source: Tech Policy Seminar

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