A metaphorical history of DNA patents

The aim of this paper is to retrace the history of genetic patents, analyzing the metaphors used in the public debate, in patent offices, and in courtrooms. I have identified three frames with corresponding metaphor clusters: the first is the industrial frame, built around the idea that DNA is a chemical; the second is the informational frame, assembled around the concept of genetic information; last is the soul frame, based on the idea that DNA is or contains the essence of the individual

Intellectual Property Law Hybridization

Traditionally, patent and copyright laws have been viewed as separate bodies of law with distinct utilitarian goals. The conventional wisdom holds that patent law aims to incentivize the production of inventive ideas, while copyright focuses on protecting the original expression of ideas, but not the underlying ideas themselves. This customary divide between patent and copyright laws finds some support in the Constitution’s Intellectual Property Clause, and Congress, courts, and scholars have largely perpetuated it in enacting, interpreting, and analyzing copyright and patent laws over time. In this Article, I argue that it is time to partially breach this traditional divide. I propose doing so by adjusting both copyright and patent law defenses and remedies so that each body of law more explicitly recognizes and facilitates the purposes of the other. In particular, in some cases copyright law’s fair use defense would be well served incorporating patent law principles relating to obviousness and novelty in assessing whether some technology’s use of copyrighted works is a fair use. And injunctive relief standards under patent law should expressly take into account how granting certain patent law remedies may affect copyrightable creative activities. Several reasons justify abandoning the conventional divide between copyright and patent laws in pursuit of such intellectual property law hybridization. First, the traditional divide fails to take into account the increasingly interdependent relationship between creative and innovative efforts prevalent in today’s world; technological innovation often triggers creative efforts, and vice-versa. Thus, adjusting defenses and remedies under each body of law in order to better adapt to these realities would help facilitate them, thereby providing additional incentives to create and invent that arguably offset any weakening of incentives brought about through such hybridization. Second, the traditional divide ignores much modern neurobiological, psychological, and cultural research, which shows that the creative processes that lead to both copyrightable expression and patentable invention are often so intertwined as to make neatly dividing and encouraging them under separate bodies of law difficult. Given these interrelationships, relaxing each body of law’s remedial harshness in some cases should actually spur creative and inventive activities. And finally, some scholarship has recently suggested that, based on the historical record, the Intellectual Property Clause of the Constitution is best interpreted as assuming the interdependent nature of creative and inventive activities; updating each body of law to better reflect these interdependencies is thus also warranted as a constitutional matter. These reasons collectively suggest that calibrating each of copyright and patent law to the interdependent nature of many creative and inventive activities better aligns each body of law with their common utilitarian theoretical heritage. The Article concludes by suggesting that hybridization efforts may be warranted not only within the intellectual property realm, but within the law more generally

Intellectual Property Law Hybridization

Traditionally, patent and copyright laws have been viewed as separate bodies of law with distinct utilitarian goals. The conventional wisdom holds that patent law aims to incentivize the production of inventive ideas, while copyright focuses on protecting the original expression of ideas, but not the underlying ideas themselves. This customary divide between patent and copyright laws finds some support in the Constitution’s Intellectual Property Clause, and Congress, courts, and scholars have largely perpetuated it in enacting, interpreting, and analyzing copyright and patent laws over time. In this Article, I argue that it is time to partially breach this traditional divide. I propose doing so by adjusting both copyright and patent law defenses and remedies so that each body of law more explicitly recognizes and facilitates the purposes of the other. In particular, in some cases copyright law’s fair use defense would be well served incorporating patent law principles relating to obviousness and novelty in assessing whether some technology’s use of copyrighted works is a fair use. And injunctive relief standards under patent law should expressly take into account how granting certain patent law remedies may affect copyrightable creative activities. Several reasons justify abandoning the conventional divide between copyright and patent laws in pursuit of such intellectual property law hybridization. First, the traditional divide fails to take into account the increasingly interdependent relationship between creative and innovative efforts prevalent in today’s world; technological innovation often triggers creative efforts, and vice-versa. Thus, adjusting defenses and remedies under each body of law in order to better adapt to these realities would help facilitate them, thereby providing additional incentives to create and invent that arguably offset any weakening of incentives brought about through such hybridization. Second, the traditional divide ignores much modern neurobiological, psychological, and cultural research, which shows that the creative processes that lead to both copyrightable expression and patentable invention are often so intertwined as to make neatly dividing and encouraging them under separate bodies of law difficult. Given these interrelationships, relaxing each body of law’s remedial harshness in some cases should actually spur creative and inventive activities. And finally, some scholarship has recently suggested that, based on the historical record, the Intellectual Property Clause of the Constitution is best interpreted as assuming the interdependent nature of creative and inventive activities; updating each body of law to better reflect these interdependencies is thus also warranted as a constitutional matter. These reasons collectively suggest that calibrating each of copyright and patent law to the interdependent nature of many creative and inventive activities better aligns each body of law with their common utilitarian theoretical heritage. The Article concludes by suggesting that hybridization efforts may be warranted not only within the intellectual property realm, but within the law more generally

Generating Rembrandt: Artificial Intelligence, Copyright, and Accountability in the 3A Era--The Human-like Authors are Already Here- A New Model

Artificial intelligence (AI) systems are creative, unpredictable, independent, autonomous, rational, evolving, capable of data collection, communicative, efficient, accurate, and have free choice among alternatives. Similar to humans, AI systems can autonomously create and generate creative works. The use of AI systems in the production of works, either for personal or manufacturing purposes, has become common in the 3A era of automated, autonomous, and advanced technology. Despite this progress, there is a deep and common concern in modern society that AI technology will become uncontrollable. There is therefore a call for social and legal tools for controlling AI systems’ functions and outcomes. This Article addresses the questions of the copyrightability of artworks generated by AI systems: ownership and accountability. The Article debates who should enjoy the benefits of copyright protection and who should be responsible for the infringement of rights and damages caused by AI systems that independently produce creative works. Subsequently, this Article presents the AI Multi- Player paradigm, arguing against the imposition of these rights and responsibilities on the AI systems themselves or on the different stakeholders, mainly the programmers who develop such systems. Most importantly, this Article proposes the adoption of a new model of accountability for works generated by AI systems: the AI Work Made for Hire (WMFH) model, which views the AI system as a creative employee or independent contractor of the user. Under this proposed model, ownership, control, and responsibility would be imposed on the humans or legal entities that use AI systems and enjoy its benefits. This model accurately reflects the human-like features of AI systems; it is justified by the theories behind copyright protection; and it serves as a practical solution to assuage the fears behind AI systems. In addition, this model unveils the powers behind the operation of AI systems; hence, it efficiently imposes accountability on clearly identifiable persons or legal entities. Since AI systems are copyrightable algorithms, this Article reflects on the accountability for AI systems in other legal regimes, such as tort or criminal law and in various industries using these systems

Making Sense of Intellectual Property Law

Intellectual property (IP) scholars have long struggled to explain the boundaries of and differences between copyright and patent law. This Article proposes a novel explanation: copyright and patent can be fruitfully understood as establishing a dichotomy between the different human senses. Copyright has bracketed works addressed to the senses of sight and hearing, and it treats products appealing to touch, taste, and smell as functional and, thus, uncopyrightable. To the extent the latter receive IP protection, it is through the utility patent regime. The Article begins by establishing this descriptive proposition, and it shows how some of the most contested areas of IP (e.g., the useful articles doctrine in copyright law and design patents) involve breaches of this sensory dichotomy. Next, I argue that the sensory dichotomy in IP reflects the sensory hierarchy in traditional Western aesthetic theory. According to this tradition, sight and hearing are considered “high” senses capable of unconstrained aesthetic and cultural experiences. Touch, taste, and smell, by contrast, are considered “low” senses, because their connection to natural bodily needs constrains their aesthetic capacities. IP law’s treatment of the senses in copyright and patent law matches this hierarchy. In recent years, however, fundamental principles of Western aesthetic theory have been undermined by developments in cognitive neuroscience, evolutionary aesthetics, and haptic and culinary communication. This research suggests that sight and hearing are not as aesthetically unconstrained and functionless, nor are touch, taste, and smell as aesthetically constrained and functional as previously believed. Accordingly, I argue that IP law should treat appeals to the senses uniformly. Works that express or communicate ideas, emotions, or pleasures to any of the five senses in such a way that creates original works of authorship should be potentially copyrightable. The Article concludes with an analysis of this proposal’s effects on various creative fields, including tactile objects, fashion, culinary dishes, and yoga

Balancing Mickey Mouse and the Mutant Copyright: To Copyright a Trademark or to Trademark a Copyright, That is the Question

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