Abstract for ipsc (2006) Professor Jessica Silbey

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Abstract for IPSC (2006)

Professor Jessica Silbey

Suffolk University School of Law

Origin Stories and Other Tales: Mythical Beginnings of Intellectual Property
I am working on a comparative analysis of the “origin stories” that structure several branches of intellectual property law – copyright, trademark and patent law. Generally speaking, an “origin story” or an “origin myth” is a narrative that explains how a culture came into being. (Genesis is an origin story; as is the story of the Founding Fathers of the United States Constitution.) An origin story serves both epistemological and ontological functions. It infuses everyday life and relations with significance by explaining why things are as they are and by providing guidance for how things should evolve based on what we already understand about our world. Origin stories also literally give a culture life by designating a beginning and a history. As David Engel has written, the “retelling of [origin] myths is … many things at once: an act of insight, a reinterpretation of the past, a reaffirmation of core values and beliefs, and a ‘reactualization’ of the cosmic order.”1

My project investigates the function of origin stories in intellectual property law. By looking closely at the development of trademark, copyright and patent protection in the United States, I hope to show how intellectual property is a manifestation both of our culture’s preoccupation with origin myths and an example of the inevitable struggle over the renunciation of our origins (and the inevitable and paradoxical development of “new” origins) in order to advance and change as a society. Within intellectual property law, this struggle is particularly acute. Assuming that one basis of intellectual property protection is to encourage innovation and creativity and the technological and economic development of our society, the more intellectual property proliferates and affects our culture, the farther it (and we) travel from its (our) “origins.” How current intellectual property regimes effectuate this goal while continuing to protect and venerate origins of human labor (creative expression, source-designating commercial signs, inventions) is one focus of the project. It examines the rhetorical structure and functional aspects of the origin story as the mechanism by which one area of law (intellectual property) works to both embrace its founding and overcome its (presumed) limitations to move forward.

Trademark, copyright and patent law each instantiate, albeit in different ways, the importance of origins. Trademark law protects signifiers as distinctive source identifiers. Patent law protects the fruits of an inventor’s labor, an inventor being the first to conceive and reduce to practice an invention. Copyright law protects original works of authorship, the expression having originated with the author and being original to (a result of creation by) the author. One part of this project will be to compare and contrast these different regimes for their structured valuation and reification of their own origin myth. This part takes as its object both the origin myths of trademark, copyright and patent law (how each began and why) and how these origin stories continue to structure the on-going evolution of the respective intellectual property regimes.

In contrast to the structural importance of the origin story in defining and substantiating intellectual property schemes, recent developments in trademark, copyright and patent law appear to be moving away from the protection of origins to alternative sources of value. Trademark law has experienced the federalization of anti-dilution law, which protects less the source identifying function of the mark than it does a right in gross. Congress is currently debating a reformation of the Patent Act that would substantially change the definition of an inventor from one who first conceives an invention to one who first files for patent protection. Recent debates about extending the term of copyright protection, concerning the United States’ obligations under the Berne Convention (as regards moral rights and the right of attribution) as well as current practice among certain authors of “digital” “works” (granting royalty-free non-exclusive licenses on the condition that attribution be granted upon publication and distribution) underscore competing notions of the originator of a work worthy of protection under the law. A second part of this project will be to trace these changes in the various intellectual property regimes and to analyze them for what they say about what I consider to be the inevitability of competing origin stories in law and culture. In contrast to the first part, which takes seriously the claim that each intellectual property regime is structured around an origin myth, this second part investigates current intellectual property debates that undercut the heuristic role of these origin myths to demonstrate instead the myth of origins.

This project participates in the growing body of interdisciplinary legal scholarship that takes as its premise the inseparability of law and culture. In this vein, my aim is threefold. One is to explain the evolution and current debates in intellectual property law in light of a novel (but otherwise well-rooted) theory of origin stories as legitimating sources of authority. Another is to discern from a comparative analysis of three federal intellectual property regimes competing origin stories and/or other narratives revealing an inherent ambivalence about the origins of human creation. And lastly, my aim is to demonstrate how the analysis of law is enriched by close attention to cultural tropes.2

1 David Engel, Origin Myths: Narratives of Authority, Resistance, Disability and Law, 27 Law & Soc. Rev. 785 (1993).

2 As I am attempting to write an origin story (the article) about origin stories (the origin myths that structure intellectual property law) that are themselves origin stories (intellectual property regimes being the legal embodiment of the protection of origins), I, myself, am participating in as much as I am critiquing the law’s facilitation of origin stories. Unpacking the significance of this recursivity may be part of the larger project.

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