Langdell on the Structure of Intellectual Property — Shyam Balganesh

Post by Shyam Balganesh

Christopher Columbus Langdell is best known as a Legal Formalist who sought to develop an autonomous and deductive approach to legal analysis. Some of his most prominent contributions were in trying to identify the structure of rights and wrongs. Hidden within his body of work is a short five-page paper entitled Patent Rights and Copy Rights (12 Harv. L. Rev. 553 (1899)) where he tries to understand the precise analytical structure of statutory patents and copyrights. Langdell makes a number of interesting points in the paper, but what I found most compelling was his effort to locate the patent and copyright systems (i.e., statutes) within the realm of private law, despite the obvious role of the state in generating and maintaining the system. Here are a few of his observations (p. 554):

Has an author, musical composer, artist, or inventor a property in his literary, musical, or artistic creation, or in his invention, regarded as an incorporeal thing? If he have, this will furnish him with another and effective means of preventing the use and enjoyment of his creation or invention by others without his consent. If such a property exist, it is not created by the State, but is deduced as a consequence of the creation or invention. If such a property does not exist otherwise, doubtless it might be created by the State; but it is believed that no State ever has created such a property.

That an author or musical composer has such a property in his creations before publication of them, using the term publication in its ordinary acceptation, is well settled by authority, and seems clear upon principle. And if such a property exists before publication, there seems to be no good reason why publication should put an end to it. Yet it must be, it seems, deemed settled by authority that such property ceases on publication, though whether because of publication, or in consequence of the expressed will of the Legislature, is not clear.

Here, Langdell is making the point that authors have a natural—“property” right—to their creation pre-publication under the common law (common law copyright), but that such property protection ceases to exist after publication. What about the nature of copyright/patent after publication, i.e., under relevant legislation? Again, his answer is quite revealing (p. 555):

[T]he State may interfere in his favor by issuing its prohibition against the use of his creation or invention by others without his consent, and by arming him with the power to enforce such prohibition; and this is what the State does when it grants letters-patent to an inventor, or enacts a law for the protection of authors, musical composers, or artists. The right thus secured to the inventor by letters-patent is a monopoly in the true sense; for it makes unlawful, except to one or a few, what, but for such letters-patent, would be lawful to all. The right thus secured by law to an author, a musical composer, or an artist may also be termed a monopoly in the strict legal sense; for such laws always assume that authors, musical composers, and artists have, after publication, no property in their creations, regarded as incorporeal things, and they confer a right which is wholly independent of any such property.

In classifying both rights as “monopol[ies]” Langdell is noticeably reluctant to treat them as property rights. All the same, he identifies their structure to consist of (i) a statutory (vertical) directive put in place by the state, coupled with (ii) a private power to enforce that directive through horizontal legal action.

It is owing to this unique entitlement structure, wherein a private right is essential to the normativity of the directive, that patent and copyright are quite legitimately forms of private law. Patent and copyright may indeed be motivated by important public purposes, but in the end their core structure is indelibly that of private law, a reality that Langdell “deduces” in his piece.

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