Vanderbilt Law Review

First Page



The international intellectual property system founded on the Paris and Berne Conventions in the late nineteenth century has been dominated by the patent and copyright paradigms, which articulate the legal protection of technological inventions and of literary and artistic works, respectively. Although this patent-copyright dichotomy was never as strictly observed abroad as in the United States, it nonetheless charted a relatively clear theoretical line of demarcation between legal incentives to create and the public interest in free competition. Any publicly disclosed technologies or information products that failed to meet the eligibility requirements of the domestic patent and copyright laws became public domain matter that anyone could freely appropriate.

By the end of the twentieth century, in contrast, this line of demarcation had empirically broken down. The developed market economies, including the United States, enacted numerous special purpose intellectual property laws to protect industrial designs, plant varieties, integrated circuit designs, and other matter that typically failed to meet the eligibility requirements of either the patent or copyright models. The latest, and arguably most deviant, examples of this trend toward "sui generis" intellectual property rights are the European - and United States-sponsored initiatives in both national and international forums calling for creation of a new form of legal protection for the contents of databases. These initiatives aim to rescue database producers from the threat of market-destructive appropriations by free-riding competitors who contributed nothing to the costs of collecting or distributing the relevant data."