The wisdom of the IP past and what we can do to preserve it
Neil Wilkof · Journal of Intellectual Property Law & Practice · 2019
The Jewish tractate “Ethics of the Fathers” is a collection of maxims and short teachings about basic ethical and moral issues, dating from the time of Moses and other spiritual leaders. The underlying premise of the tractate is clear: not only can we continue to learn from the past, but it is in our interest to do so. In a less rhetorical way, is there something similar that can be said regarding the legacy of IP learning? If so, what is the responsibility of an IP publication, such as the Journal of Intellectual Property Law and Practice, to preserve IP learning of the past? This author is a hoary veteran of the IP publication wars since the 1980s and one thing is clear: despite the seemingly ever-increasing torrent of IP scholarship, it would be sheer hubris to arrogate to the present moment an outsized role in its contribution to IP wisdom. Learning is cumulative and cross-generational. As such, it is an act of folly to turn our backs on the collective wisdom generated by earlier IP thinkers. But since no field can recall all of its accumulated learning, the question is how, and even more importantly, what to preserve. We start with those rarified contributions that continue to inform without any special effort to preserve them. Let’s consider three exemplars. First, there is past learning that literally changed the face of IP law. There is no better example than Frank Schechter’s 1927 article, “The Rational Basis of Trademark Protection” ((1927) 40 Harvard Law Review 813). In it, the author presaged the rationale for a dilution right in trade mark law alongside of the traditional right based on source identification and confusion. Second, there is past learning that crystallizes a new approach for an existing body of law. Consider the article by William Landes and Richard Posner, “Trademark Law: An Economic Perspective” ((1987) 30 Journal of Law and Economics 265). Here, the two authors applied the law and economics approach specifically to an understanding of trade mark law. By focusing on the search cost benefits of trade marks, they battled against the long-time hostility in some quarters against trade marks as being primarily a tool in the hands of advertising to create unnecessary consumer wants. Third, we find past learning that continues to inform us about a particular aspect of IP law. An excellent example is a 1982 article by Wendy Gordon, “Fair Use As Market Failure: A Structural and Economic Analysis of the Betmax Case and its Predecessors” ((1982) 82 Columbia Law Review 1600). What Gordon did was recast the understanding of fair use, that most nettlesome of notions under U.S. copyright law. She replaced the amorphous “equitable rule of reason” approach with a three-part test based on the notion of market failure. But Schechter, Landes and Posner, and Gordon are easy examples, because their centrality remains unabated by virtue of their on-going, unmediated influence. What this author is more interested in is the preservation of IP learning that perhaps lacks iconic status, but still has the capacity to instruct. In particular, I am proposing a call to the IP community to identify worthy articles from the past that merit our continuing attention, so that we can better understand our contemporary IP moment. We are not talking about reproducing such articles in full (although considering them in their original form is certainly the ultimate goal). Rather, our interest is to encourage written commentary to highlight their continuing relevance, using a particular article to offer insights from the IP present based on the wisdom of the IP past. This journal can (and should) play a proactive role in promoting such pieces. In reaching out to the IP community, what is important is to achieve as broad a coverage as possible across a wide variety of jurisdictions. This author is guilty as charged - his own examples are limited to U.S. scholars. But valuable IP learning is not limited by language or place. In making this call to the IP community of this journal, writers that go beyond the usual suspects of the sources of IP learning are welcome, indeed encouraged. Bringing attention to such past IP scholarship outside of the US and England would constitute a major contribution to the vitality of this initiative. So there we have it, readers of the Journal of Intellectual Law and Practice, the gauntlet has been thrown down. Who will meet the challenge?