"An Idea Whose Time Has Come" — But Where Will It Go?
Responding to Arthur R. Miller, Common Law Protection For Products of the Mind: An "Idea" Whose Time Has Come, 119 Harv. L. Rev. 703 (2006)
This Reply picks up where Professor Miller’s bold proposal leaves off: with the private international law and international copyright implications of state common law protection for idea-submitters. We will first address the compatibility of the proposal with international copyright norms disqualifying ideas from copyright protection. We will then turn to the consequences of the proposal for a federal system. Professor Miller’s article thoroughly examines one aspect of the federalism problem, that of federal copyright policy preemption of state-based idea protection. But in advocating a regime constricted to the fifty separate states, not all of whose courts choose to secure idea submissions (and if they do, the scope of their coverage may diverge), the proposal raises implementation problems inherent in the territorial scope of the right. Given those problems, federal statutory coverage of idea-submitters might seem preferable. That in turn raises the question whether, assuming protection of the kind Professor Miller advocates is a good idea, Congress has power to enact it.
119 Harv. L. Rev. F. 65 (2006) | DOWNLOAD PDF
