1. Legal rights in created intangibles
Learning Objectives: Unit 1
Upon the conclusion of this unit, you should be able to:
- Explain what a creative intangible is.
- Articulate reasons for the existence of, and limits on, legal rights over creative intangibles.
- Recall the most common forms of intellectual property and their basic attributes.
This course introduces students to the laws governing intellectual property and the policies that underlie those laws. As you will quickly learn, intellectual property is not a monolithic concept. Nor do intellectual property laws govern every aspect of the use of human creativity. Instead, intellectual property law can be understood as an open framework governing most commercially relevant activities relating to human-created intangibles that is intended to incentivize certain behaviors and discourage others. At the same time, there are strong moral components that underlie intellectual property law and social justice, fairness, and equitable consequences that flow from its existence.
In preparation for our first class, spend some time thinking about what the following questions. Write down your responses on a sheet of paper or electronic document. You will refer to them during our first class.
- What do you think of as your intellectual property?
- How much attachment do you feel to the different kinds of intellectual property that you identified?
- Why do you feel those attachments?
- Are you willing to share any of your intellectual property?
- If you are willing to share your intellectual property, what (if anything) do you want in return? If money, how much?
Next, read International News Service v. Associated Press. This opinion is often read at the beginning or end of a class on Intellectual Property law; we will read it in both places. It is often read at the beginning because it can provide an introduction to the concept of creative intangibles, rationales for protecting them, and the legal questions they raise. Other syllabi place it at the end of the course because it lies within the interstices of more formally recognized legal rights and raises complex issues of preemption and federal-state interactions. The decision is also from the period before Erie Railroad v. Tomkins, which eliminated the concept of federal common law for issues that fall within state substantive law. (If you have not yet studied this case, you will in Civil Procedure.) As a result, while it provides for a good starting point for learning about intellectual property law, it has been almost entirely eclipsed by the other legal doctrines covered in a course on intellectual property law.
