‘Prior Art in Copyright’

Joseph P Fishman and Kristelia García, ‘Authoring Prior Art’, 75 Vanderbilt Law Review (forthcoming 2022), available at SSRN. Patent and copyright law share what the Supreme Court calls a ‘historic kinship’: they both grant exclusive rights under the IP Clause to incentivize production of new knowledge goods. But they implement this goal through very different doctrinal frameworks, including different roles for ‘prior art’ – all the information that existed before the innovation at issue. Patent validity crucially depends on whether an invention is new and nonobvious compared to the prior art. In contrast, it doesn’t matter if a copyrighted work is similar to earlier works as long as it wasn’t actually copied from them. Copyright treatises unquestioningly assert that the formal prior art analysis of patent law has had no place in blackletter copyright doctrine … (more)

[Lisa Larrimore Ouellette, JOTWELL, 17 February]

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