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Beyond Preemption: The Law and Policy of Intellectual Property Licensing |
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| Proposed Uniform Commercial Code Article 2B, which would govern transactions in information, would remake the law of intellectual property licensing in a radical way. But federal and state intellectual property laws and policies impose significant limits on the ability of states to change the rules of intellectual property licensing by contract law. One such limit is preemption, but preemption is unlikely to provide significant protection for the established rules of intellectual property law. Several other doctrines will limit the ability of parties to set their terms by contract, even in the Article 2B world. The first is copyright misuse, which has been applied against restrictive licensing provisions. The second set of doctrines provides that a number of licensing rules are decided as questions of federal, not state, law. The third set of doctrines is a number of state public policies that cannot be overridden by contract. Taken together, these doctrines create a patchwork public policy of intellectual property law that Article 2B cannot alter. | |
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Copyright
© 1999 by California Law Review, Inc. |
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