The Difficult Necessity of Unified Intellectual Property Law

Intellectual property, the modern source of wealth, is protected by a jumbled maze of common law, statutes, judicial decisions, and treaties. This allows some desirable protections to be unavailable and others to be subject to overlapping jurisdictions. It will take a concerted effort by the best legal, technical, and political minds to create unified intellectual property law but it is necessary. This comment briefly illustrates why unity is needed.

Of course, there are obvious difficulties to be overcome. These include the rapid expansion of new technologies as well as numerous valuable business concepts, the ease of transferring information, and the multiple U.S. state and federal jurisdictions as well as global jurisdictions. There is simultaneously the need to encourage innovation by protection and the need to allow public access for usage and refinement. There is a need to define what should be subject to private property ownership and what should be considered freely available common knowledge. Current intellectual property law is divided into broad categories such as trademark, trade dress, copyright, patent, and trade secret. A unified view might harmonize these historically created categories.

Several recent examples illustrate a few of the current problems. A much discussed 2012 decision by the federal Court of Appeals for the Second Circuit, U.S. v. Aleynikov, reversed a theft conviction under federal law for transferring proprietary source code since it was intangible property and not the "goods, wares, and merchandise," protected by the statute. Unified intellectual property law could clarify what is subject to theft.

A 2013 federal Fifth Circuit decision, Target Strike. Inc. v. Marston & Marston, Inc., discussed several Texas statutes of limitations in concluding that the trade secret litigation was time-barred. Unified intellectual property law could clarify the applicable statute of limitations.

"This case is yet another concerning the application of established intellectual property concepts to new technologies." This is the first sentence of a 2013 federal Ninth Circuit decision, Columbia Pictures Industries v. Fung. In part the decision addresses the applicability of patent and copyright law. Unified intellectual property law could contemplate future technologies and the appropriate forms of protection.

Unifying intellectual property law might begin with a broad based blue ribbon commission comparable to that which created the Uniform Commercial Code. The most desirable membership configuration would be global. While it might take a decade or more to finalize a recommendation, this is not so much an obstacle as a call to begin now. In due course ideas might be translated into comprehensive statutes and treaties. Doubtless critics will find much to attack. Optimism believes that while difficult, the time has come for unified intellectual property law.