I have posted a new paper, Making Sense of Intellectual Property Law, to SSRN. It is forthcoming in the Cornell Law Review. Here is the abstract:
Intellectual property (IP) scholars have long struggled to explain the boundaries of and differences between copyright and patent law. This Article proposes a novel explanation: copyright and patent can be fruitfully understood as establishing a dichotomy between the different human senses. Copyright has bracketed works addressed to the senses of sight and hearing, and it treats products appealing to touch, taste, and smell as functional and, thus, uncopyrightable. To the extend the latter receive IP protection, it is through the utility patent regime. The Article begins by establishing this descriptive proposition, and it shows how some of the most contested areas of IP (e.g., the useful articles doctrine in copyright law and design patents) involve breaches of this sensory dichotomy. Next, I argue that the sensory dichotomy in IP reflects the sensory hierarchy in traditional Western aesthetic theory. According to this tradition, sight and hearing are considered “high” senses capable of unconstrained aesthetic and cultural experiences. Touch, taste, and smell, by contrast, are considered “low” senses, because their connection to natural bodily needs constrains their aesthetic capacities. IP law’s treatment of the senses in copyright and patent law matches this hierarchy.
In recent years, however, fundamental principles of Western aesthetic theory have been undermined by developments in cognitive neuroscience, evolutionary aesthetics, and haptic and culinary communication. This research suggests that sight and hearing are not as aesthetically unconstrained and functionless, nor are touch, taste, and smell as aesthetically constrained and functional as previously believed. Accordingly, I argue that IP law should treat appeals to the senses uniformly. Works that express or communicate ideas, emotions, or pleasures to any of the five senses in such a way that creates original works of authorship should be potentially copyrightable. The Article concludes with an analysis of this proposal’s effects on various creative fields, including tactile objects, fashion, culinary dishes, and yoga.
Download the paper here.