Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 2 of 2
Full-Text Articles in Law
Copyright, Custom, And Lessons From The Common Law, Jennifer E. Rothman
Copyright, Custom, And Lessons From The Common Law, Jennifer E. Rothman
All Faculty Scholarship
In this essay prepared for the University of Pennsylvania’s conference on Intellectual Property and the Common Law, I build upon my work on custom and intellectual property. I focus here on one important facet of the subject — how longstanding common law principles should inform our understanding of custom. The common law provides a number of lessons on how to appropriately limit the consideration of custom in intellectual property law and elsewhere. The essay begins by considering the traditional role of custom in the common law. Part II then examines several of the ways that courts have incorporated custom into …
The Pragmatic Incrementalism Of Common Law Intellectual Property, Shyamkrishna Balganesh
The Pragmatic Incrementalism Of Common Law Intellectual Property, Shyamkrishna Balganesh
All Faculty Scholarship
‘Common law intellectual property’ refers to a set of judge-made legal regimes that create exclusionary entitlements in different kinds of intangibles. Principally the creation of courts, many of these regimes are older than their statutory counterparts and continue to co-exist with them. Surprisingly though, intellectual property scholarship has paid scant attention to the nuanced law-making mechanisms and techniques that these regimes employ to navigate through several of intellectual property law’s substantive and structural problems. Common law intellectual property regimes employ a process of rule development that this Article calls ‘pragmatic incrementalism’. It involves the use of pragmatic and minimalist techniques …