Wednesday, May 15, 2013

Varadarajan on Improvement Doctrines

DeepaDeepa Varadarajan (St. John's) has posted Improvement Doctrines (George Mason) on SSRN.  Here's the abstract:

When one party makes significant but unauthorized improvements to another's land, chattels or informational assets, should the "improving" nature of the act alter the liability or remedy calculus? Traditional property law has long had to resolve conflicts that arise when one person improves another's land or chattels without permission -- for example, if A cuts down B's trees and fashions a chair, or A erects a building on B's land. Ordinarily, A would be liable and subject to an injunction because B has a strict right to exclude that is protected by a property rule. But various doctrines in traditional property law, like the doctrines of accession, mistaken improvers of land, and ameliorative waste, make exceptions for improvers. These doctrines either excuse the improver from liability entirely or mandate a remedy more hospitable to the improver. I call these assorted rules "improvement doctrines" and articulate a multi-part framework for understanding the equity and efficiency concerns animating them. In so doing, I challenge the (increasingly contested) presumption that property law unwaveringly favors strict exclusive rights for owners -- a presumption that is often invoked by those advocating strict exclusive rights for intellectual property owners. 

This Article demonstrates that unlike property law, intellectual property law has been less receptive to improvement doctrines. This is particularly surprising given intellectual property's normative commitment to progress and innovation. Patented inventions and copyrighted expressive works necessarily build on what came before. While patent law's “reverse doctrine of equivalents” and copyright's “fair use” doctrine may provide incidental relief for unauthorized improvers in certain cases, these intellectual property doctrines are often indifferent to improvement. Given the uncertainty of intellectual property boundaries and the societal consequences of deterring improvement, I argue that the concerns motivating traditional property's improvement doctrines apply with even greater force to intellectual property. Accordingly, I suggest potential areas of reform in patent and copyright law to enhance and regularize judicial consideration of unauthorized improvement at the liability and remedies stages.

Steve Clowney

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