CIPIL Seminar: 'Inventing Around Copyright'

Speaker: Dan Burk (University of California, Irvine)

Location: B16

Abstract: Patent law has long harbored the concept of “inventing around,” under which competitors to a patent holder may be expected, and even encouraged, to design their technologies so as to skirt the boundaries defined by patent claims. It has become increasingly clear that, for better or for worse, copyright also fosters inventing around. Copyright is not based on written claims, but because copyright links exclusive rights to technological actions such as reproduction, distribution, or transmission, the language of the copyright statute, and judicial readings of the statute, create boundaries around which potential infringers may technologically navigate. For example, the Aereo case recently decided by the United States Supreme Court involves technology that was explicitly designed to conform to non-infringing definitions of private transmission found in previous court decisions. But in copyright, unlike patent, there has been little analysis of the tendency to foster alternative technological development. In this paper I draw upon previous analyses of inventing around in patent law to assess the benefits and detriments of inventing around in copyright.

Speaker: Dan L. Burk is Chancellor’s Professor of Law at the University of California, Irvine, where he is a founding member of the law faculty. An internationally prominent authority on issues related to high technology, he lectures, teaches, and writes in the areas of patent, copyright, electronic commerce, and biotechnology law. He is the author of numerous papers on the legal and societal impact of new technologies, including articles on Internet regulation, on the structure of the patent system, and on the economic analysis of intellectual property law.

Professor Burk holds a B.S. in Microbiology (1985) from Brigham Young University, an M.S. in Molecular Biology and Biochemistry (1987) from Northwestern University, a J.D. (1990) from Arizona State University, and a J.S.M. (1994) from Stanford University. Prior to joining the faculty at UC Irvine, he taught at the University of Minnesota. He has served as a legal advisor to a variety of private, governmental, and intergovernmental organizations, including the American Civil Liberties Union Committee on Patent Policy and the OECD Committee on Consumer Protection.