Fairness in Intellectual Property Law
BU Law welcomed IP law scholars to the School’s second annual IP Conversation.
Just days before the Supreme Court of the United States heard arguments in the Samsung v. Apple intellectual property case, Boston University School of Law welcomed IP law scholars and students to take part in the second annual IP Conversation. Under discussion was the concept of fairness in IP law.
In regard to the Samsung case, the conversation’s participants discussed at what point it becomes unfair to force an infringer to surrender profits not attributable to the infringement. Other topics included the use of cooperative game theory as a tool for determining fair allocation of IP proceeds, and examining the recent EU deliberations on how to secure fair remuneration for authors.
BU Professor of Law and William Fairfield Warren Distinguished Professor Wendy J. Gordon opened the mini-conference by drawing out a fundamental difference between copyright and patent law. Copyright infringement, she noted, imposes liability only on defendants who “copy,” meaning they have borrowed something from the copyrighted work. This limitation makes the operation of copyright law correspond at least roughly with common-sense notions of fairness based in reciprocity: people who benefit from others’ work are legitimate candidates for paying some kind of compensation.
By contrast, patent law often imposes liability against independent creators whose inventions are acknowledged to owe nothing to the patentee’s work. Characterizing patent law as “fair” requires us to resort to a different notion of fairness—a notion that all inventors consent to a winner-take-all contest.
Using these and other doctrinal examples, Gordon encouraged the conference attendees to identify differing notions of fairness at play in IP, and to develop a taxonomy from which coherent themes might tentatively emerge.
Wendy Gordon discusses fairness in IP law and the Second Annual IP Conversation
BU Associate Professor of Law and noted patent law scholar Paul Gugliuzza discussed Samsung v. Apple, offering his thoughts on the fairness of damages awarded for design patent infringement. He suggested that Congress could easily solve the problem presented by the Samsung case by repealing the statute that provides a special disgorgement remedy for design patent infringement (35 U.S.C. § 289) and instead having the general patent damages statute (35 U.S.C. § 284) govern both utility patent cases and design patent cases. “Making design patents more like utility patents would have the important benefit of creating consistency within the law,” he said.
Picking up on the subject of fair distribution of profits, BU Professor of Law and Abraham and Lillian Benton Scholar Michael Meurer argued that cooperative game theory and the ways economists understand fairness might help judges divide profits among collaborators, such as members of a band or the creators of a startup. In response to Meurer’s paper, Director of BU Law’s Human Trafficking Clinic Julie Dahlstrom argued that when individuals lack bargaining power and are often threatened or coerced into markets that “lack any semblance of transparency,” the circumstances demand a more nuanced discussion of fairness than what can be offered by game theory. “Making moral and philosophical judgments to sort out claims is necessary to IP law,” she said, “but is fairness achievable in these complex cases?”
Turning to copyright law, Columbia University’s Morton L. Janklow Professor of Literary and Artistic Property Law Jane Ginsburg spoke on fair remuneration of authors under European and American law. She noted the provisions built into copyright laws of the EU and US to protect authors—who are often the weaker parties in the “creative industries”—in the form of reversion of rights to the author after a fixed period of time. “Unfortunately,” she said, “the US reversion right has been compromised over time.” While countries in the EU often intervene to correct authors’ weaker bargaining position by restricting the scope of the rights that authors may grant, or by requiring that authors be paid “fair remuneration” for the rights they grant, Ginsburg called for global consensus in these attempts to continue the fair division of the gains on creative works. Noting the possibility of differences in perspectives across European nations, John Golden, Loomer Family Professor in Law at the University of Texas School of Law, wondered about how fairness in copyright law should be settled at the local, national, or European level.
BU Law is internationally recognized as a center for excellence in intellectual property law. The School’s well-known faculty of scholars and wide-ranging curriculum choices equip students to address complex intellectual property issues at an advanced level. BU Law’s strong relationships with the academic and legal communities, as well as the technology industries in Greater Boston, give students additional exposure to top practitioners in the field. Events such as IP Conversations and the Intellectual Property Speaker Series draw scholars from across the country to examine pressing topics in the fields of patent, trademark, and copyright law.