Comments on this paper are provided by Justin Hughes, Cardozo School of Law, and Roberta Rosenthal Kwall, DePaul University College of Law.

by Justin Hughes

In 1787, James Madison and Charles Pinckney made a series of discrete proposals to the Constitutional Convention to establish different mechanisms – copyrights, patents, "premiums," and such – to inventors, authors, and scientists. These separate proposals were referred to the Committee of Detail in late August and a few weeks later the committee reported back the language that became Article I, section 8, clause 8 of the U.S. Constitution. There was no explanation, then or subsequently, as to why the eleven Founders on the committee had chosen to combine the protection of authors and inventors in a single enumerated power.

But having done so, they appear to have created for Americans the nascent idea of a single legal realm, intellectual property. Although copyright and patent law have lived largely separate lives, the two remain entwined, if not married. The same House and Senate committees have authority over the two; they form two of the three principle pillars of a unified UN agency and a WTO treaty; the Supreme Court intermittently recognizes their kinship; and law scholars occasionally compare the two, looking for experience on one side that might improve the law on the other.

Joseph Miller's Hoisting Originality joins this interesting body of literature, making the engaging proposal that copyright law might be improved by adopting an originality standard that is "something closer" to the non-obviousness standard used in patent law.  … Keep reading this comment

by Roberta Rosenthal Kwall

It is indeed very fitting that the inaugural Virtual Workshop sponsored by the Intellectual Property Institute at the University of Richmond School of Law is featuring a paper entitled Hoisting Originality. The idea of a virtual workshop, complete with widespread virtual participation beyond that of the initial contributors, is a wonderfully different idea and I thank Jim Gibson for inviting (and encouraging) me to participate and for pairing me with Justin Hughes, a scholar for whom my personal respect is evident in so many of my own works. When Jim asked me to comment on Joe Miller's work, he mentioned that this was a paper about which I would want to think deeply, and Joe's paper certainly lives up to this representation. In Hoisting Originality, Miller argues that the current statutory copyright standard for originality does not do the job, and proposes instead that copyright “draw on patent law's nonobviousness requirement€”with its focus on departure from conventional wisdom as the mark of a protectable invention” (p. 12). Thus, Miller's recommendation would call for an assessment of whether a given work embodies a unique authorial voice that “stands apart” from conventional expression (p. 23). The “creative” aspect of originality, according to Miller, should be judged by whether it reflects “the unconventional, the unpredicted, the unorthodox” (p. 30).   … Keep reading this comment