Making Sense of Intellectual Property Law

Intellectual property (IP) scholars have long struggled to explain the boundaries of and differences between copyright and patent law. This Article proposes a novel explanation: copyright and patent can be fruitfully understood as establishing a dichotomy between two different groups of human senses. Copyright traditionally involves objects addressed to the senses of sight and hearing while products appealing to touch, taste, and smell are the province of utility patent law. The Article begins by establishing this descriptive proposition, and it shows how some of the most contested areas of IP (e.g., copyright’s useful articles doctrine and design patent law) involve breaches of this sensory dichotomy. Next, I argue that the sensory dichotomy in IP reflects the sensory hierarchy in traditional Western aesthetic theory. According to this tradition, sight and hearing are “high” senses capable of unconstrained aesthetic and cultural experiences. Touch, taste, and smell, by contrast, are “low” senses because their connection to natural bodily needs constrains their aesthetic capacities. IP law’s treatment of the senses in copyright and patent law matches this hierarchy. In recent years, however, developments in the social sciences and aesthetic theory have undermined fundamental principles of Western aesthetic theory. This research suggests that sight and hearing are not as aesthetically unconstrained and functionless, nor are touch, taste, and smell as aesthetically constrained and functional, as was previously believed. Accordingly, I argue that IP law should treat appeals to the senses uniformly. Works that express or communicate ideas, emotions, or pleasures to any of the five senses in ways that create original works of authorship should be potentially copyrightable. The Article concludes with an analysis of this proposal’s effects on various creative fields, including tactile objects, fashion, culinary dishes, and yoga.