Perhaps it’s appropriate, in light of our trademarky posts, to float some trial balloons here about possible new name for the AALS Section on Intellectual Property Law. At last week’s annual meeting, the question was raised, “Should we change our section name?”
I am content with the current name. At the same time, on the plane ride back to Portland, a few alternative names occurred to me. Let me know what you think of them. And let me know of other ideas for section names, too. Comments are open!
a. Section on Creative & Inventive Works
b. Section on Creative & Inventive Progress
c. Section on Creative & Inventive Progress & Heritage
d. Section on Creative & Inventive Progress & Expression
How about just “Section on IP”? People will know what it means, unlike some of the others. And I’m in print as suggesting that “IP” should replace “intellectual property” more generally.
I think IP is much better for these reasons
* accurate and descriptive
* familiar
* much broader than those narrow alternatives
(Is a domain name creative? inventive? expressive? or even progress? And what about the next whatever….)
The AALS meeting was the first I’d heard of the name change idea, so maybe there’s some history here of which I’m unaware. That said, my gut reaction is that we are unlikely to come up with a name that’s accurate and comprehensive enough to make a change worthwhile. If no one had ever heard the term “intellectual property” before, perhaps that term would be an odd choice, but at this point it has the distinct advantage of being a known quantity; no one in the AALS section (or in AALS generally) encounters those words in a vacuum. Maybe its primary meaning is not as accurate as we might want, but it’s got considerable secondary meaning.
If the objection to it is that it implies a broader property right than the law does or should provide, I think the modifier “intellectual” signals that we are not talking about regular old boring first-year property. (Again, “intellectual” might not be the best modifier for this purpose, but we are not starting from scratch.)
I’m willing to be convinced otherwise. Perhaps someone could lay out the argument in favor of a name change for the benefit of those like me, who have come late to the party?
I think a name change would be silly.
There are two possible reasons to change the name. First, there’s a slight under-inclusiveness of the word “intellectual.” Jim Gibson alludes to this problem of fit. Still, the problem here is very slight. Most of what we study involves intellectual creation, certainly that’s true for patents, copyrights, trade secrets and even traditional arts and knowledge. The trademarks and domain names press the limits slightly, but only slightly. Trademarks and names are words and symbols that are created by, and have meaning only to, the human intellectual. The main difference with trademarks is that the value of a trademark is usually conferred by things like reputation, etc. I suspect that the main impetus for change is not the word “intellectual.”
The second reason to change is hostility to the word “property.” Like Mark, my position is also in print, and I’m in favor of the word property being applied to the field. I do not think that, by using the word “property,” we are committing ourselves to the idea that all things should be privately owned. The study of intellectual property is concerned with both private and public property. But the legal rights to exclude, and the legal issues that arise, are very much property issues. Even statutory law so recognizes, e.g., 35 USC 261, not even to mention world treaty law. Of course, if the AALS section name did not incorporate the word “property,” there could be no cause for alarm, as several other names would do just fine. But if the AALS section changes its name to expunge the word property, the change will be viewed as nothing more or less than a semantic game to advance a particular policy agenda. — jfd
Section on claims to innovation.
or Section on Claims to Innovation & Identification
Like Jim, AALS was the first time I’d heard of the name change idea. If I understood Wendy correctly, part of the intent is to commit intentional genericide–to pick a new “brand” for the section and hope it becomes the name for the genus of law formerly known as intellectual property. The challenge to such a plan is that genericide, whether fervently desired or (more typically) despised, largely depends on the habits of the public. Because of the path dependence Jim cites, I expect that “intellectual property” is the term that will stick. When people look for the AALS section that deals with patents, copyrights, trademarks, etc., somebody will need to confirm that “Yes, ‘X’ is what they used to call the Intellectual Property section.” Thus, the AALS section would likely be identified as “the Section formerly known as the Section on Intellectual Property Law.”
On the other hand, one benefit of the proposal is that a name change might make it easier to talk about anything interesting that is generally related to technology, culture, or innovation. I have encountered many non-IP legal academics who still think of our field as exclusively focused on technical, doctrinal issues. From an organizational perspective, changing the name to something that broadly addresses culture and innovation like Joe suggests might make it easier to do broad programs and co-sponsorships with other AALS sections. It was quite enjoyable to have 4 IP panels this year: two official IP panels (one co-sponsored with the Computers and the Law section) plus IP topics at the Art Law and Law and Anthropology panels. We certainly don’t seem to be having any trouble extending our reach as things stand, but why stop there? I suppose other scholars might get tired of hearing about IP, but they just need to be converted.
Jim rightly focuses on a central question – what’s the argument in favor of a name change? Because I’m content with the current name, I may not know the strongest argument(s) in favor of a change; and, like Jim, I hadn’t heard discussion of it until the brief mention at the AALS meeting itself.
The core argument against is, I think, that the word “property” assumes some answers to questions about the scope and strength of rights to exclude that are actually quite contested in the literature. Variants on the theme refer to the fact that the phrase “intellectual property” was coined relatively recently, and that the constitutional underpinnings of our copyright and patent law seem to invoke a utilitarian framework (rather than a Lockean, natural-rights, property one).
I mangled the prior comment a bit. When I say “The core argument against,” I mean “The core argument against using the phrase Intellectual Property Law in the Section’s name.”
We should break the section into three different sections and call them: Patents, Copyrights, and Trademarks. That way we’d get three panels every annual meeting.
Section on Patent, Copyright, and Trademark
(or PCT and related rights, if it’s broader than those 3)
Section on PCT sounds like a good compromise to me. IP sounds way too scatalogical for my taste. Keeping with Joe’s funky proposals, how about:
Section on Legal Regulation of the Competitive Process (a nod to the old Kitch/Perlman book)
Section on Innovation, Creation, and Technical Change
Section on IPR’s (less suggestive of bodily functions and keeping with how some globally refer to the topic)
or how about
Section on Intellectual Non-property? 😉
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