Mala Chatterjee, ‘Understanding Intellectual Property: Expression, Function, and Individuation’

Underlying the fundamental structure of intellectual property law – specifically, the division between copyright and patent law – are at least two substantive philosophical assumptions. The first is that the creative works and inventions are importantly different in nature, warranting differently structured legal regimes: copyright on the one hand, and patent on the other. And the second is that particular creative works and inventions can be determinately individuated from each other, thereby being subjects of distinct legal rights. But neither the law nor existing scholarship provides an analysis of these categories, what distinguishes them, or why their distinctions should matter to law. This Article thus defends a novel theory substantiating and unifying these assumptions: that creative works are author-individuated, whereas inventions are structure-individuated. In other words, drawing on philosophical thinking, thought experiments, and existing practices surrounding expression and functionality, this Article argues that two acts of authorship cannot result in the same creative work (only ‘structurally identical’ works), but two acts of invention can result in the same invention. This Article then explains how these ‘individuation theses’ vindicate certain core features of intellectual property law, as well as what they mean for different theories of what justifies intellectual property rights. Finally, the Article teases apart possible implications from the individuation theses for refining existing doctrine, including for copyrights’ and patents’ structures, domains, and treatment of works with expressive and functional overlap. It concludes with complications that the individuation theses raise for authorship and functionality for future work.

Chatterjee, Mala, Understanding Intellectual Property: Expression, Function, and Individuation (July 27, 2021).

First posted 2021-08-03 13:15:32

Leave a Reply