The IP "Other"

The "other" of intellectual property law, its policy, is at the center of intellectual property law and the driving force behind its inception. This policy behind the constitutional provision and the statutory law provides a strong base of support for public access to information. Ironically, the policy that drives the goals of our current intellectual property law is almost completely ignored in the digital age, where the ease of copy and dissemination of intellectual products creates fear from copyright owners who demand extreme anti-access stances in Congress as well as in the courts.

The intellectual property law is based in a congressional grant to authors of a limited monopoly of rights in their works:

The Congress shall have the power . . . to Promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. (U. S. Const, art. 1, 8, cl. 8.)
The primary policy behind the constitutional grant is to ensure that intellectual works remain in the public domain in order to promote learning. Secondarily, as a means to pursue the policy goals of the provision, the law also protects authors' rights in their work.

The 1976 Copyright Act, our current and controlling statute, also supports the policy goals of the constitutional provision. "While copyright is in one sense a statute, it is also a constitutional principle" (Henry 1975). The framers of the Constitution acknowledged that knowledge forms the basis of a progressive society and that information and the possibility for learning should be available to all members of society.

The fair use exceptions, in addition, provide direct support for the policy intentions of the constitutional provision as a means of assurance that the information that is at the basis of our culture remains accessible for critical comment, parody, news reporting, and educational purposes. (Note that without fair use, our right to free speech would be inhibited.)

Unfortunately, the public policy issue is often ignored in lieu of economic interests. The day-to-day application of law necessarily focuses on the dispensation of conflict between individuals. And necessarily, lawyers are trained specifically to meet the needs of the legal system and are economically supported by their work in this area.

Policy considerations, on the other hand, arise not from individual conflicts, but from the need to examine the effects of law on our cultural development as a society and a nation. The public at large, rather than the individual, is the interested party in treatment of policy issues. But the policy issues behind the statute are not usually treatable in case dispensation because the courts focus on legal conflicts between individuals rather than policy conflicts concerning society as a whole.

Although the legislature is the proper forum for treatment of policy issues, the majority of legislators who treat these issues have been trained as lawyers, whose primary responsibility is to serve clients with their legal issues. Most legislators are not retrained in the policy issues of intellectual property law when their responsibilities shift to public service. It is understandable, however disconcerting, that the public is underrepresented in intellectual property policy issues.

The result of the overriding focus on economic conflicts regarding intellectual products is that the policy behind the Constitution's intellectual property provision retains the position of the ignored "other" of IP law, despite its importance to us as educators and to our society as a whole.

Henry, Nicholas. (1975). Copyright: Information technology, public policy. New York: Marcel Decker.

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