This is a summary of Professor Van Houweling’s topic of discussion and forthcoming article:
Intellectual property scholars often contrast tangible and intangible property schemes on the basis of how much information is readily available about the identity of property owners and the nature of their rights. Typically, the comparison holds up tangible property—real property in particular—as the model of successful information provision. Physical signs can provide clues that a piece of land is owned by someone (often the person in possession). Public records indicate exactly who that someone is and reveal details about the physical dimensions of the parcel, how its ownership has changed over time, and whether express encumbrances (liens, servitudes, etc.) complicate ownership. These sources of information help to prevent inadvertent trespass by those who wish to avoid invading private land; they facilitate consensual transactions for those who seek permission to use or buy it.
Intellectual property rights, by contrast, do not so neatly correspond either to physical things in the world or to public records signifying ownership and identifying owners. Of course physical objects can embody intellectual works—a book can embody a copyrighted story, for example. But ownership of the physical object does not necessarily (or even usually) correspond to ownership of the intellectual property right or vice versa.
Indeed, readily observable indicia of ownership of physical objects (possession of books, for example) are more likely to mislead than to inform about ownership of the embedded intangible rights. And although some such objects are marked with signs of copyright or patent ownership, a practice which is encouraged by the relevant federal statutes in the United States, marking is not a prerequisite for protection. In many cases neither the physical object nor any record to which it is expressly tied provides much indication about whether the intellectual work is owned or by whom. A story embodied in a book may be copyrighted or it may be in the public domain; the copyright may be held by the author or by an employer, heir, devisee, or transferee; some elements of the story may be free and others owned (by the author or by someone else from whom the author copied with or without permission); etc. In the patent realm there is at least a centralized record of all issued patents. There is no comprehensive list of copyrights.
Anxiety about the inadequacy of information about intellectual property rights has increased in recent years due to statutory changes that have made the situation worse (e.g. the elimination of registration and notice as prerequisites for copyright protection), and technological changes that have raised the stakes and thickened thickets of (often hidden) rights. In the copyright context this anxiety is manifest—for example—in policy debates about the status of “orphan works” whose owners cannot be identified and located, and the (related) fate of the Google Book Search project. In the patent context critics are alarmed when innovators’ investments are jeopardized by allegations that they have infringed unclear and thus difficult-to-avoid patent claims—especially in the new-fangled realms of software and Internet business methods. In both the copyright and patent contexts, informational inadequacies can contribute to inadvertent infringement and then to surprising and costly disputes; or fear of potential infringement—combined with the inability to identify, locate, and negotiate with relevant rights-holders—can chill productive endeavors.
Critics of this current state of affairs lament what they see as unnecessarily faulty information provision and suggest that intellectual property should aspire to replicate the superior informativeness of real property. For example, copyright reformers have called for statutory changes modeled on the centralized ownership information provided by land recording systems and the title-clearing function performed by marketable title acts. As for patents, although the public availability of issued patents (and of most applications 18 months after they are filed) already provides a relatively comprehensive centralized source of information, critics complain that vague patent claims do too little to clarify inventions’ “metes and bounds.”
I have explored various aspects of the comparison between the information infrastructures supporting intellectual property versus land in other work. In this essay I will focus in particular on what copyright reformers can learn from land recording systems established in U.S. states and elsewhere. Solicitude for both original owners and innocent subsequent investors has shaped the land law for centuries. These competing interests are managed in part by the establishment of property information infrastructures that allow prior and later investors to identify each other and understand their rights. While critics of U.S. copyright law’s abandonment of mandatory formalities lament that the copyright information infrastructure is less reliable, they are sometimes inattentive to the fact that the land law has also eschewed mandatory formalities that would result in forfeiture of unrecorded interests. Recording is not generally required to establish interests in land—just as registration and recording are not required to establish copyright ownership. Instead, land recording systems prioritize competing interests in ways that powerfully incentivize recording by landowners. What are arguably the best of these systems condition their protections for innocent subsequent investors on their recording as well, thus incentivizing all actors to contribute to a formal information system that can avoid the most difficult fact-specific inquiries into actual notice and the like. The best of the current proposals for copyright reform share this feature, and a better understanding of land law helps us to appreciate their strengths.