THE PROBLEM WITH INTELLECTUAL PROPERTY RIGHTS: SUBJECT MATTER EXPANSION

Abstract

This article examines the expansion of the subject matter that can be protected under intellectual property law. Intellectual property law has developed legal rules that carefully balance competing interests. The goal has long been to provide enough legal protection to maximize incentives to engage in creative and innovative activities while also providing rules and doctrines that minimize the effect on the commercial marketplace and minimize interference with the free flow of ideas generally. The expansive view of subject matter protectable via intellectual property law has erased the clear delineation between patent, copyright, and trademark law. This has led to overprotection of intellectual property in the form of overlaps which allow multiple bodies of intellectual property law to simultaneously protect the same subject matter. Such overlapping protection is problematic because it interferes with the carefully developed doctrines that have evolved over time to balance the private property rights in intellectual creations against public access to such creations. This article will examine the competing policies that underlie the various branches of intellectual property law. It will then discuss the expanding domain of subject matter protected by patent, copyright, and trademark law. Finally, it will examine the overlaps that exist under patent, copyright, and trademark law and the resulting problems with regard to software, clothing, computer icons, graphical computer interfaces, music, and useful commercial products.