Scholars often debate whether intellectual property really is property at all. This is far more than just a descriptive inquiry. Asking how law regulates tangible and intangible goods differently can deliver valuable insights about the optimal governance of real property and chattels, patents and copyrights. Deepa Varadarajan’s engaging piece, Improvement Doctrines, forthcoming in the George Mason Law Review, represents an important contribution to the growing literature about what property and IP can help us learn about one another. Improvement Doctrines focuses on the fascinating but underappreciated body of doctrines in physical property law that favor—and sometimes entirely excuse—trespass and conversion that is done in good faith and that adds significant value to the res. Professor Varadarajan’s article then uses these improvement doctrines as a lens though which to analyze intellectual property’s relatively anemic attempts to take account of improving but unauthorized uses of patented inventions and copyrighted works of authorship. In so doing, Improvement Doctrines identifies and illuminates a series of fascinating problems that span both physical and intellectual property law.
Professor Varadarajan’s article begins with physical property’s improvement doctrines and moves into an investigation of unauthorized improvement in intellectual property law. In so doing, though, it neither assumes that tangible and intangible property law must mechanically mirror each other, nor insists that the differences between corporeal and incorporeal goods render any such extrapolations useless. Rather, Improvement Doctrines’ primary analytical driver is its thoughtful synthesis of the efficiency and equity rationales underlying ameliorative waste, accession, adverse possession, and mistaken improvement of land. This discussion alone yields a number of valuable insights, such as the creative point that adverse possession warrants categorization as an improvement doctrine even though its substantive law does not require enhancements to land.
Professor Varadarajan’s piece then leverages this discussion of the structure of property’s improvement doctrines to draw attention to a perplexing problem that has largely escaped the attention of scholars: Property law is in many respects more forgiving of unauthorized improving use than intellectual property law, even though both patent and copyright exist only pursuant to a constitutional mandate to advance the progress of science and the useful arts. The piece concludes with a series of suggestions for how to make IP law more closely approximate the kind of toleration toward improvers that physical property law exhibits. These final prescriptive claims, though, rest on the undefended assumption that more toleration for improvement in IP law would foster more creation and invention. It is at least worth pondering the possibility that greater leeway for unauthorized improvement of others’ inventions and works of authorship would undermine authors’ and inventors’ incentives to create them in the first place.
Like all good work, Improvement Doctrines not only makes a strong case for its central claims but also raises a host of other provocative points to contemplate. Among these, perhaps the most interesting flow from Professor Varadarajan’s apt observation that property law’s improvement doctrines reflect the capacity of trespass and conversion to create social welfare. This point carries a pair of intriguing implications: First, law has traditionally assumed that the best arbiter of a productive use of property is the owner of the res. But Improvement Doctrines reminds us that this is by no means the case. Landowners may let productive space go unused, so that we end up cutting a break for the good faith improver who mistakenly builds a house on a vacant lot. And copyright owners may guard their works too jealously, so that we need law to favor the user who makes an unauthorized but socially valuable derivative work.
Second, and related, it’s not only unauthorized improvement of property that can create substantial social value, but unauthorized use. Professor Varadarajan’s analysis elucidates the case of the unauthorized use that transforms property, like building a house on the wrong lot or making a remix of sound recordings without the owners’ permission. But not all socially productive unauthorized use of property necessarily creates something new or improved in the process. Trespass over an unimproved plot of land may provide a helpful way of access at no cost to the owner. Making an unauthorized digital version of an obscure, out of print book may provide the only way for a student to acquire a copy of that text for class. The improvement doctrines on which Professor Varadarajan focuses may be only a part of a larger picture that situates in doctrine and theory the unappreciated upsides of unauthorized use of property, physical and intellectual alike.