Copyright and the Public Interest from the Perspective of Brown v. Board of Education

Abstract

This Essay examines the extent to which some of the seminal ideas and principles from and underlying Brown v. Board of Education can be used to provide a perspective that may help develop intellectual property law in ways that advance the cause of social and economic justice. The social justice-conscious approach of the Court in Brown can inform our understanding of and can inform the development of the public interest as a way to rebalance the rights of intellectual property right holders, users, and the public at large. The principles the Court used in Brown that are examined and applied in this Essay include: (1) Use current circumstances to evaluate law, keeping in mind the effect on the public good; (2) Importance affects analysis - the importance of intellectual property today is analogous to the importance of education fifty years ago; (3) Abuse of power to exploit or exclude others is improper and may rise to the level of being unconstitutional; and (4) Intangible effects matter. Ultimately, these principles, like the Brown decision itself, derive from human rights principles of the inherent dignity, worth, and equality of each person. The issue is justice, not merely legal rights instrumentally conceived.

Keywords: Brown v Board of Education, Civil rights, intellectual property, copyright, social justice, jurisprudence