Cultural Heritage and the Public Domain: What the US’s Myriad and Mayo Can Teach Oslo’s Angry Boy,
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Description
At a high level of generality, intellectual property (IP) regimes are much alike. They grant exclusivity to promote socially desirable activity, be it creating goodwill and maintaining quality, producing expressive works, or inventing technological products and processes. Of course details differ, for each system must take account of the demands of the sector it governs. Thus the gravamen of a copyright claim—copying—would never be suitable for trademark law because trademark’s focus on diminishing search costs is inconsistent with allowing similar trademarks (even if independently produced) to confuse consumers. Similarly, trademark’s term of protection—which continues as long as the mark is in use—would not be suitable for patent law, where one generation’s output is the next generation’s input and the goal is to promote rapid progress. Still, as a theme of this volume suggests, IP regimes have much to teach one another. Even though convergence may not always be normatively desirable, each regime can learn from the experience of others. A case in point is the recent move to safeguard the public’s interest in using its cultural heritage by denying trademark protection to symbols, such as Gustav Vigeland’s Angry Boy statue, on public policy and morality grounds, or as Martin Senftleben puts it, on the basis of interests grounded in aesthetic theory. US patent law similarly curtailed the scope of protection in order to leave certain works—the building blocks of science—“free to all men and reserved exclusively to none.” Accomplished over a series of four Supreme Court cases, the limits imposed on patent eligibility have not fared well Incentives to innovate have decreased, uncertainty has increased, and there are now concerted efforts to revise the law. What the US is learning is that permissive rules on coverage, when coupled with exceptions protective of the public domain and access interests, form a far more nuanced—and effective—approach to reconciling public and proprietary interests. The same, it can be argued, is true for trademark law. This chapter begins with a description of the Vigeland decision to deny trademark protection in order to safeguard the public domain status of Norway’s cultural heritage. It then outlines the US experience with the analogous move in patent law and argues that the problems encountered in the patent realm could easily arise in the trademark sphere. Drawing on my earlier work, the chapter suggests that defenses that focus on the significance of trademarks in the marketplace of ideas represent a superior way to protect the public interest in enjoyment of the “surplus value” of trademarks—that is, their non-source identifying dimensions.
Source Publication
Transition and Coherence in Intellectual Property Law: Essays in Honour of Annette Kur
Source Editors/Authors
Niklas Bruun, Graeme B. Dinwoodie, Marianne Levin, Ansgar Ohly
Publication Date
2021
Recommended Citation
Dreyfuss, Rochelle C., "Cultural Heritage and the Public Domain: What the US’s Myriad and Mayo Can Teach Oslo’s Angry Boy," (2021). Faculty Chapters. 1160.
https://gretchen.law.nyu.edu/fac-chapt/1160
