The Role of the Subconscious in Intellectual Property Law

by Robin Feldman –

Human behavior stems from a fascinating tangle of conscious and subconscious impulses. Issues resulting from this combination can become relevant in a wide variety of legal contexts, including choosing where to place a burden or whom to hold liable. These nuances are particularly important in intellectual property, as much of it stems from the human mind as it interacts with the natural world as well as previous creations. This piece will consider how Intellectual Property law handles subconscious impulses on the part of participants in the system. Looking at examples from Copyright, Trade Secret, and Patent law, this Article argues that although such impulses may be treated differently in different areas of Intellectual Property law, the variations can be understood in the context of the moral stance adopted in the doctrinal area. Where the connection between the moral stance of the doctrine and the approach taken by the doctrine is muddled, it may signal a doctrine in disarray and suggest the need for reformulation. Connecting this thread throughout the various areas of Intellectual Property law may lead to more equitable and effective doctrinal choices. At the very least, it has the virtue of packaging the doctrinal choices in more palatable form for those who inhabit the world of intellectual property rights.

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