The Mountain of IP Legislation

I observed in “Legislation and Law in a Free Society” (longer and updated version in Legal Foundations of a Free Society) various problems with using legislation to “make” law. For one thing, it requires a legislature, which requires a state. For another, it conceives of law as being “made” by human will rather than natural principles “found” by people seeking justice. One problem with IP law–mainly patent and copyright, but also trade secret and trademark, to varying degrees–is that it requires modern state legislation. It cannot be created without it.

I was working on lecture #4 for my Mises Academy course “Rethinking Intellectual Property: History, Theory, and Economics” [KOL175] and was compiling some of the key statutes, treaties, international bodies, and pending legislation and treaties that undergird modern patent, copyright, and other types of IP law. Just seeing it all in one place is striking; it cannot fail to make the libertarian advocate of IP a bit queasy, one would think.

I list some below with minimal commentary, and links.

Key IP Statutes and Treaties

Historical

• 1624: Statute of Monopolies 1623 (England): key patent statute
• 1710: Statute of Anne 1709 (England): key copyright statute
• 1691: South Carolina enacts first “general” patent law (as distinguished from authorization to the Crown to make patent grants)¹

Modern IP (US)

• Patent: Constitution; Patent Act of 1790; Patent Act of 1952; now Title 35, USC
  • Administered by USPTO (Dept. of Commerce)
• Copyright: Constitution; Copyright Act of 1790; now Title 17, USC
  • Copyright Office (Library of Congress)
• Trademark: state law, plus federal
  • Lanham Act of 1946: Title 15, Ch. 22 of USC
  • USPTO
• Trade Secret: mostly state law
  • Restatement (Second) of Torts §757 and Uniform Trade Secrets Act (UTSA) (1979)

Modern IP Additions (US)

• Copyright
  • No Electronic Theft Act (NET Act) (1997)
    • criminal prosecution for copyright infringement;
    • up to five years in prison and up to $250,000 in fines
  • Sonny Bono Copyright Term Extension Act (CTEA) (1998)
    • AKA Sonny Bono Act, or “Mickey Mouse Protection Act”
    • Extended copyright term by 20 years (life of author plus 70 years, or 95/120)
  • Digital Millennium Copyright Act (DMCA) (1998)
    • criminalizes use of anti-DRM-circumvention technology
    • Key “safe harbor” for OSPs and ISPs for copyright liability
      • Online Copyright Infringement Liability Limitation Act (“OCILLA”)
  • DMCA added “Vessel Hull Design Protection Act”—protection for boat hull designs
• Trademark: Antidilution
  • Federal Trademark Dilution Act of 1995
    • Trademark Dilution Revision Act of 2006
• Trade Secret
  • Federal Economic Espionage Act of 1996 (18 U.S.C. § 1831–1839)
    • makes the theft or misappropriation of a trade secret a federal crime

Major International Bodies

• World Trade Organization (WTO)
  • Organization for “liberalizing” international trade
• World Intellectual Property Organisation (WIPO)
  • UN agency for IP protection

IP Treaties

• Paris Convention for the Protection of Industrial Property (1883)
  • Permits patent filing date in first country to be relied on in others
• Patent Cooperation Treaty (PCT) (1970)
  • Unified procedure to file international or “PCT” applications can be filed
  • Still examined separately and result in national or regional patents
    • Regional: European Patent Convention (EPC) of 1973
      • European patents granted by European Patent Office not unitary
      • Side by side with national patents
• Berne Convention for the Protection of Literary and Artistic Works (1886) and WIPO Copyright Treaty of 1996
  • International standard for and recognition of copyright of other countries
• Madrid System
  • international registration of trademarks
  • administered by the International Bureau of WIPO
• General Agreement on Tariffs and Trade (GATT)
  • 1994 Uruguay Round covers IP
• The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)
  • international agreement administered by the WTO
  • sets down minimum standards for many forms of intellectual property regulation as applied to nationals of other WTO Members
  • Jerome H. Reichman, “Universal Minimum Standards of Intellectual Property Protection Under the TRIPS Component of the WTO Agreement,” International Lawyer 29 (1995): 345–88

Pending IP Laws and Treaties

• Anti-Counterfeiting Trade Agreement (ACTA)
  • See https://c4sif.org/tag/acta/
  • Proposed agreement for the purpose of establishing international standards on intellectual property rights enforcement
  • would create its own governing body outside existing international institutions such as the WTO and WIPO
  • Designed to protect copyright and patent (and trademark?)
  • Copyright: Anti-circumvention prohibition as with DMCA
• Combating Online Infringement and Counterfeits Act (COICA)
  • See https://c4sif.org/tag/coica/
  • Proposed in United States Senate
  • allows the blocking the domain names of web sites accused of piracy
  • Update: Son of COICA: New Copyright Bill Introduced
• Trans-Pacific Partnership (TPP)
• The Transatlantic Trade and Investment Partnership (TTIP)
• Anticipating a Federal Trade Secret Law | McDonnell Boehnen Hulbert & Berghoff LLP – JDSupra
• Agitation to add IP laws for fashion,² database rights, etc.
  • And now, a push for a federal right to publicity: see A National Right of Publicity: the Federal Anti-Impersonation Right (FAIR)
  • Push to extend copyright to cover hyperlinks and newspaper headlines

[Mises cross-post]: archived comments:

Silas Barta November 24, 2010 at 2:44 pm

Key physical property statutes and treaties:

Code of Hammurabi…

Stephan Kinsella November 24, 2010 at 7:19 pm

nice justification, statist sycophant! or as we say in libertarian–pathetic!

DixieFlatline November 26, 2010 at 1:34 pm

@Silas, successful troll is successful.

Andras November 24, 2010 at 4:50 pm

What is the alternative to courts? Shooting each others?

Dan McCarthy November 24, 2010 at 6:05 pm

Shooting each other’s movies and making them better 

Peter Surda November 25, 2010 at 5:31 am

I have proposed reciprocal damages for IP before. That does not require courts or shooting. If someone violates your IP, the appropriate reaction would be to violate his IP back, e.g. by libel or slander. I don’t see why IP proponents should object, since to them, imaginary property is either equivalent or superiour to physical property.

Michael A. Clem November 25, 2010 at 9:28 am

There’s nothing wrong with the general idea of courts–third party arbitration makes a lot of sense. The problem is in what type of law the courts are supporting, which in turn goes back to what is supporting the courts: government courts are supported by taxation and legislative appointments. Private courts are supported by their customers. Which type of court do you think is going to support the absurdities of IP?

1. See Fritz Machlup, An Economic Review of the Patent System (1958), 79-80., Part II.B. [↩]
2. Fashion Rights Extension to Copyright Coming Down the Pike; Ed Lopez: Fashion Copyright: A New Defense of Design Copying; Christopher Sprigman on IP and the Fashion Industry.  [↩]