Vol ## THE PROBLEM OF UNIFORMITY COST social costs of intellectual property rights err. In fact, if intellectual property rights were the only available solution to the underproduction problem, the ideal implementation would be perfectly tailored rights i.e. rights that promised the expected value necessary to induce investment in only socially-desirable innovations II UNIFORMITY AND ITS LIMITS IN US. INTELLECTUAL PROPERTY LAW Recognizing that theoretically desirable per entitlement design is unattainable, we must now focus on pragmatic understanding of uniformity cost and on institutional options for reducing these costs. After considering these matters. this section analyzes contemporary patent and copyright law to identify the legal constraints on policymakers' options to reduce uniformity cost and to identify the extent to which institutional options for reducing uniformity cost have been implemented A. Uniformity and Institutional Options for Reducing Its Cost Intellectual property rights have three dimensions: subject matter scope, and duration. The subject matter of intellectual property potentially is all information. Scope defines the actions that the rightholder may engage in lawfully with respect to protected subject matter, the actions of others for which the rightholder may seek legal redress, and the remedial rules specifying available redress. Duration is a relevant dimension The claim for perfect tailoring is qualified because if policymakers had sufficient information about expected value to perfectly tailor rights, a more efficient policy response to underproduction would be to pay innovators directly for the costs of innovation while leaving the costs of distribution to competitive markets. See, e.g., Mark A. Lemley, Ex Ante versus Ex Post Justifications for Intellectual Property, 71 U CHI. L REV. 129, 131, 135(2004)(characterizing intellectual property rights as anecessary evil" and arguing that default preference in market economy is to leave distribution to competitive markets). Nonetheless, if the policymakers options are restricted to the creation of exclusive rights, perfectly tailored rights are superior to a regime of uniform ghts with perfect price discrimination because dynamic inefficiencies would be eliminated as wel See, e. g. Wendy J. Gordon, An Inquiry Into The Merits Of Copyright: The Challenges Of Consistency, Consent, And Encouragement Theory, 41 STAN. L. REV. 1343, 1356 ( 1989)(using Hohfeldian entitlement schema to describe scope of rights under
Vol. ##] THE PROBLEM OF UNIFORMITY COST 15 social costs of intellectual property rights err. In fact, if intellectual property rights were the only available solution to the underproduction problem, the ideal implementation would be perfectly tailored rights45 – i.e. rights that promised the expected value necessary to induce investment in only socially-desirable innovations. III. UNIFORMITY AND ITS LIMITS IN U.S. INTELLECTUAL PROPERTY LAW Recognizing that theoretically desirable perfect precision in entitlement design is unattainable, we must now focus on pragmatic understanding of uniformity cost and on institutional options for reducing these costs. After considering these matters, this section analyzes contemporary patent and copyright law to identify the legal constraints on policymakers’ options to reduce uniformity cost and to identify the extent to which institutional options for reducing uniformity cost have been implemented. A. Uniformity and Institutional Options for Reducing Its Costs Intellectual property rights have three dimensions: subject matter, scope, and duration. The subject matter of intellectual property potentially is all information. Scope defines the actions that the rightholder may engage in lawfully with respect to protected subject matter, the actions of others for which the rightholder may seek legal redress, and the remedial rules specifying available redress.46 Duration is a relevant dimension 45 The claim for perfect tailoring is qualified because if policymakers had sufficient information about expected value to perfectly tailor rights, a more efficient policy response to underproduction would be to pay innovators directly for the costs of innovation while leaving the costs of distribution to competitive markets. See, e.g., Mark A. Lemley, Ex Ante versus Ex Post Justifications for Intellectual Property, 71 U. CHI. L. REV. 129, 131, 135 (2004) (characterizing intellectual property rights as a “necessary evil” and arguing that default preference in market economy is to leave distribution to competitive markets). Nonetheless, if the policymaker’s options are restricted to the creation of exclusive rights, perfectly tailored rights are superior to a regime of uniform rights with perfect price discrimination because dynamic inefficiencies would be eliminated as well. 46 See, e.g. Wendy J. Gordon, An Inquiry Into The Merits Of Copyright: The Challenges Of Consistency, Consent, And Encouragement Theory, 41 STAN. L. REV. 1343, 1356 (1989) (using Hohfeldian entitlement schema to describe scope of rights under copyright)
Vol ## THE PROBLEM OF UNIFORMITY COST because the U.S. Constitution requires that federal patent and copyright rights be limited in time 47 Intellectual property rights are"uniform the subject matter is broadly defined and the scope and duration of rights is the same for all protected subject matter. Rights are "tailored"when scope or duration varies depending either on the classification of the work or invention along industry-specific or technology-specific lines, say, as computer software, or classification of the initial rightholder(e.g, whether the rightholder was a government employee or used public funds to create the protected information). Rights can be, and have been, tailored along a continuum of abstraction In the most abstract sense, all intellectual property law has been tailored because its subject matter does not include all information. Even when the law makes some distinction between protected and public domain information, that distinction could be captured by a single set of intellectual property rights. From this perspective, differences in the rights granted by copyright and patent law, respectively, represent a form of tailored protection driven by the relative differences in functionality and expressiveness in patentable and copyrightable subject matter. Fc purposes of this Article, the baseline for measuring uniformity will be the now-traditional copyright/patent distinction: Rights are"uniform"if the standard rights under patent or copyright apply and are"tailored"if these have been varied for particular subject matter or for particular initial Five sources of law specify whether U.S. intellectual property rights are uniform or tailored (1) the U.S. Constitution;(2)international obligations;(3) statutory entitlements;(4)judicial opinions refining the contours of those entitlements, and(5)administrative adjudicatory and regulatory interpretations of those entitlements. The Constitution grants Congress power to enact patent and copyright laws, and Congress has 47 See U.S. CONST. art. 1,$8, cl. 8(granting Congress power to secure exclusive rights for authors and inventors for"limited Times") During the Renaissance, for example, the scope and duration of royal privileges or letters patent granted to publishers and inventors were quite similar. See, e.g., Michael w. Carroll, Whose Music ls It Anyway?: How We Came To view Musical Expression As A Form Of Property, 72 U CIN. L REV. 1405 (2004) See, e.g., Dennis Karjala, Distinguishing Patent and Copyright Subject Matter, 35 CONN. L REV. 439, 524 (2003)(arguing that digital technology creates pressure on the expression/function distinction between copyrightable and patentable subject matter ); see also Clarisa Long, Information Costs in Patent and Copyright, 90 VA. L. REV. 465 (2004)(arguing that patent and copyright bundle distinct entitlements because of differing costs of conveying information about the protected subject matter)
Vol. ##] THE PROBLEM OF UNIFORMITY COST 16 because the U.S. Constitution requires that federal patent and copyright rights be limited in time.47 Intellectual property rights are “uniform” when the subject matter is broadly defined and the scope and duration of rights is the same for all protected subject matter. Rights are “tailored” when scope or duration varies depending either on the classification of the work or invention along industry-specific or technology-specific lines, say, as computer software, or classification of the initial rightholder (e.g., whether the rightholder was a government employee or used public funds to create the protected information). Rights can be, and have been, tailored along a continuum of abstraction. In the most abstract sense, all intellectual property law has been tailored because its subject matter does not include all information. Even when the law makes some distinction between protected and public domain information, that distinction could be captured by a single set of intellectual property rights.48 From this perspective, differences in the rights granted by copyright and patent law, respectively, represent a form of tailored protection driven by the relative differences in functionality and expressiveness in patentable and copyrightable subject matter.49 For purposes of this Article, the baseline for measuring uniformity will be the now-traditional copyright/patent distinction: Rights are Auniform@ if the standard rights under patent or copyright apply and are Atailored@ if these have been varied for particular subject matter or for particular initial rightsholders. Five sources of law specify whether U.S. intellectual property rights are uniform or tailored: (1) the U.S. Constitution; (2) international obligations; (3) statutory entitlements; (4) judicial opinions refining the contours of those entitlements, and (5) administrative adjudicatory and regulatory interpretations of those entitlements. The Constitution grants Congress power to enact patent and copyright laws, and Congress has 47 See U.S. CONST. art. I, § 8, cl. 8 (granting Congress power to secure exclusive rights for authors and inventors for “limited Times”). 48 During the Renaissance, for example, the scope and duration of royal privileges or letters patent granted to publishers and inventors were quite similar. See, e.g., Michael W. Carroll, Whose Music Is It Anyway?: How We Came To View Musical Expression As A Form Of Property, 72 U. CIN. L. REV. 1405 (2004). 49 See, e.g., Dennis Karjala, Distinguishing Patent and Copyright Subject Matter, 35 CONN. L. REV. 439, 524 (2003) (arguing that digital technology creates pressure on the expression/function distinction between copyrightable and patentable subject matter); see also Clarisa Long, Information Costs in Patent and Copyright, 90 VA. L. REV. 465 (2004) (arguing that patent and copyright bundle distinct entitlements because of differing costs of conveying information about the protected subject matter)
Vol # THE PROBLEM OF UNIFORMITY COST provided some form of patent and copyright protection since 1790. 50 More recently, the United States has committed itself to exercise that constitutional authority subject to copyright-specific and patent-specific multilateral, international agreements administered by the World Intellectual Property Organization. Overarching and reinforcing the obligations under WIPO agreements are those imposed on the United States as a party to the Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS"). The current statutor See Act of April 10, 1790, I Stat. 109, 1st Cong SI The copyright-specific agreements to which the United States is a party are: The Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, 25.S.T 1341, 828 U.N.T.s. 211 (last revised at Paris, July 24, 1971)(hereinafter Berne Convention), The Universal Copyright Convention, Sept 6, 1952, 6 U.S.T. 2732, 216 U.N.T.S. 132, WIPO Performance and Phonograms Treaty, adopted Dec 20, 1996, S Treaty Doc. No. 105-17, 36 I.L. M76(hereinafter WPPT), and WIPO Copyright Treaty adopted Dec. 20, 1996, S. Treaty Doc. No. 105-17, 36 I.L. M. 65(hereinafter WCT) The United States also is party to narrower agreements offering tailored protections with respect to specific forms of expression or modes of delivery. See,e The Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite, May 6-21, 1974, art. 2(1),13 I.L. M. 1444(obligating member states to regulate satellite transmission); The Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms, Oct. 29, 1971,art 2, 25 U.S.T. 309, 866 U N.T.s. 67(obligating member states to protect phonogram 15, The patent-specific agreements to which the United States is a party are Paris Convention for the Protection of Industrial Property, Mar. 20, 1883 1583, 626 U N.T.S. 305(hereinafter Paris Convention), the Patent Cooperation Tr June 19, 1970, 28 UST. 7645, 1160 U.N.T.S. 23 1(hereinafter PCT), and the Strasbourg Agreement Concerning the International Patent Classification, Mar. 24, 1971, 26 U.S.T 1793. The United States also has signed but not ratified the Patent Law Treaty, June 1 2000, 39 I.L. M. 1047, which entered into force in Member States on January 28, 2005 Seehttp://www.wipoint/edocs/notdocs/ /plt/treaty plt 12. html (last viewed date) The United States also is party to agreements specifying tailored procedural requirements See, e.g., Budapest Treaty on the International Recognition of the Deposit of 1861ganisms for the Purposes of Patent Procedure, Apr. 28, 1977, 32 U.S.T. 1241 361 available at http://www.wipo.int/treaties/en/registration/budapest/trtdocswo002.html#p694336 The International Court of Justice has jurisdiction to resolve disputes under the principal substantive agreements, the Berne Convention(copyright) and the Paris Convention(patent), but that jurisdiction has yet to be invoked. See GRAEME B DINWOODIE et aL. INTERNATIONAL INTELLECTUAL PROPERTY LAW AND POLICY 44 (2001): Graeme B. Dinwoodie, International Property Litigation: A Vehicle For Resurgent Comparativist Thought?, 49 AM J COMP L. 429(2001)(hereinafter"Int'I IP Litigation). In principle, the International Court of Justice has jurisdiction to resolve disputes arising under both conventions, but no parties have invoked this jurisdiction to date. See DINWOODie et al., supra, at 45 Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994
Vol. ##] THE PROBLEM OF UNIFORMITY COST 17 provided some form of patent and copyright protection since 1790.50 More recently, the United States has committed itself to exercise that constitutional authority subject to copyright-specific and patent-specific multilateral, international agreements administered by the World Intellectual Property Organization.51 Overarching and reinforcing the obligations under WIPO agreements are those imposed on the United States as a party to the Agreement on Trade-Related Aspects of Intellectual Property Rights (ATRIPS@).52 The current statutory 50 See Act of April 10, 1790, 1 Stat. 109, 1st Cong. 51 The copyright-specific agreements to which the United States is a party are: The Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, 25 U.S.T. 1341, 828 U.N.T.S. 211 (last revised at Paris, July 24, 1971) (hereinafter Berne Convention), The Universal Copyright Convention, Sept. 6, 1952, 6 U.S.T. 2732, 216 U.N.T.S. 132, WIPO Performance and Phonograms Treaty, adopted Dec. 20, 1996, S. Treaty Doc. No. 105-17, 36 I.L.M.76 (hereinafter WPPT), and WIPO Copyright Treaty, adopted Dec. 20, 1996, S. Treaty Doc. No. 105-17, 36 I.L.M. 65 (hereinafter WCT). The United States also is party to narrower agreements offering tailored protections with respect to specific forms of expression or modes of delivery. See, e.g., The Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite, May 6-21, 1974, art. 2(1), 13 I.L.M. 1444 (obligating member states to regulate satellite transmission); The Convention for the Protection of Producers of Phonograms Against Unauthorized Duplication of Their Phonograms, Oct. 29, 1971, art. 2, 25 U.S.T. 309, 866 U.N.T.S. 67 (obligating member states to protect phonogram producers). The patent-specific agreements to which the United States is a party are the Paris Convention for the Protection of Industrial Property, Mar. 20, 1883, 21 U.S.T. 1583, 626 U.N.T.S. 305 (hereinafter Paris Convention), the Patent Cooperation Treaty, June 19, 1970, 28 U.S.T. 7645, 1160 U.N.T.S. 231 (hereinafter PCT), and the Strasbourg Agreement Concerning the International Patent Classification, Mar. 24, 1971, 26 U.S.T. 1793. The United States also has signed but not ratified the Patent Law Treaty, June 1, 2000, 39 I.L.M. 1047, which entered into force in Member States on January 28, 2005. See http://www.wipo.int/edocs/notdocs/en/plt/treaty_plt_12.html (last viewed date) The United States also is party to agreements specifying tailored procedural requirements. See, e.g., Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Procedure, Apr. 28, 1977, 32 U.S.T. 1241, 1861 U.N.T.S. 361 available at http://www.wipo.int/treaties/en/registration/budapest/trtdocs_wo002.html#P69_4336. The International Court of Justice has jurisdiction to resolve disputes under the principal substantive agreements, the Berne Convention (copyright) and the Paris Convention (patent), but that jurisdiction has yet to be invoked. See GRAEME B. DINWOODIE et al., INTERNATIONAL INTELLECTUAL PROPERTY LAW AND POLICY 44 (2001); Graeme B. Dinwoodie, International Property Litigation: A Vehicle For Resurgent Comparativist Thought?, 49 AM. J. COMP. L. 429 (2001) (hereinafter “Int’l IP Litigation”). In principle, the International Court of Justice has jurisdiction to resolve disputes arising under both conventions, but no parties have invoked this jurisdiction to date. See DINWOODIE et al., supra, at 45. 52 Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994
Vol ## THE PROBLEM OF UNIFORMITY COST entitlements reside in the Patent Act of 1952. as amended. 3 and the Copyright Act of 1976, as amended. The federal courts have exclusive jurisdiction to enforce these entitlements, with the U.S. Court of Appeals for the Federal Circuit and the United States Supreme Court sharing exclusive appellate jurisdiction over well-pled complaints arising under the Patent Act. Finally, the United States Patent and Trademark Office PTO has administrative responsibility for examining and issuing patents pursuant to the Patent Act; whereas, the United States Copyright Office issues copyright registrations, subject to minimal examination, and performs other tasks delegated by the Copyright Act. Taken together, these sources of law require that patent and copyright entitlements be uniform in some respect, be tailored in others, and they grant judicial and administrative officials a range of interpretive discretion to enforce these entitlements either uniformly or in tailored fashion Within these constraints, it is likely as an institutional matter that tailoring will have to be done on an industry-specific or technology- specific basis. There are five methods of tailoring: (1) executive Marrakesh Agreement Establishing the World Trade Organization, Annex Ic, LEGAL INSTRUMENTS- RESULTS OF THE URUGUAY ROUND vol 31 33 LLM. 81 (1994)[hereinafter TRIPS Agreement]. As a matter of substantive law, the TRIPs Agreement primarily incorporates the essential requirements of the Berne Convention for copyrights and the Paris Convention for patents, as revised, but the enforcement mechanism under the TRIPS Agreement is far more effective. The TRIPS Agreement is administered by the TRiPS Council of the World Trade Organization. See DINWOODIE et al, supra note XX, at 45-47. Disputes under the TRIPS Agreement are subject to the WTOs dispute settlement procedure and are subject to review by the WTOs appellate These obligations apply only to how member States treat innovators or innovations from other member States. Congress can depart from uniformity without violating these obligations if such departures apply only to works created by United States innovators. See, e.g., 17.SC.s 411(applying registration requirement in copyright law only to U.S. works). For further analysis of this registration requirement, see infra notes XX and accompanying text S3 See Pub. L. No. 82-593, 66 Stat. 792(1952)(codified as amended at 35 U.SC. 1,et S4 See 17UsC.§s101-806 5s28USC.§1338(a) See Holmes Group, Inc. v. Vornado Air Circulation Sys, Inc, 535 U.S. 826(2002) pplying well-pleaded complaint rule to"arising under jurisdiction under 28 U.S.C. SS ee Richard C. Levin, et al., Appropriating the returns from Industrial Research and Development, 1987 Brookings Papers on Econ. Activity 728, 818(1987)(Since the impact of legal protection of intellectual property depends on the strength of other appropriability mechanisms and varies widely among industries, focused efforts to solve problems in specific markets would be more prudent than a broad attempt
Vol. ##] THE PROBLEM OF UNIFORMITY COST 18 entitlements reside in the Patent Act of 1952, as amended,53 and the Copyright Act of 1976, as amended.54 The federal courts have exclusive jurisdiction to enforce these entitlements,55 with the U.S. Court of Appeals for the Federal Circuit and the United States Supreme Court sharing exclusive appellate jurisdiction over well-pled complaints arising under the Patent Act.56 Finally, the United States Patent and Trademark Office (“PTO”) has administrative responsibility for examining and issuing patents pursuant to the Patent Act; whereas, the United States Copyright Office issues copyright registrations, subject to minimal examination, and performs other tasks delegated by the Copyright Act. Taken together, these sources of law require that patent and copyright entitlements be uniform in some respect, be tailored in others, and they grant judicial and administrative officials a range of interpretive discretion to enforce these entitlements either uniformly or in tailored fashion. Within these constraints, it is likely as an institutional matter that tailoring will have to be done on an industry-specific or technologyspecific basis.57 There are five methods of tailoring: (1) executive Marrakesh Agreement Establishing the World Trade Organization, Annex 1c, LEGAL INSTRUMENTS – RESULTS OF THE URUGUAY ROUND vol. 31, 33 I.L.M. 81 (1994) [hereinafter TRIPS Agreement]. As a matter of substantive law, the TRIPS Agreement primarily incorporates the essential requirements of the Berne Convention for copyrights and the Paris Convention for patents, as revised, but the enforcement mechanism under the TRIPS Agreement is far more effective. The TRIPS Agreement is administered by the TRIPS Council of the World Trade Organization. See DINWOODIE et al., supra note XX, at 45-47. Disputes under the TRIPS Agreement are subject to the WTO=s dispute settlement procedure and are subject to review by the WTO=s Appellate Body. Id. These obligations apply only to how member States treat innovators or innovations from other member States. Congress can depart from uniformity without violating these obligations if such departures apply only to works created by United States innovators. See, e.g., 17 U.S.C. § 411 (applying registration requirement in copyright law only to U.S. works). For further analysis of this registration requirement, see infra notes XX and accompanying text. 53 See Pub. L. No. 82-593, 66 Stat. 792 (1952) (codified as amended at 35 U.S.C. § 1, et seq.), 54 See 17 U.S.C. §§ 101-806. 55 See 28 U.S.C. § 1338(a). 56 See Holmes Group, Inc. v. Vornado Air Circulation Sys., Inc., 535 U.S. 826 (2002) (applying well-pleaded complaint rule to “arising under” jurisdiction under 28 U.S.C. §§ 1295(a)(1), 1338). 57 See Richard C. Levin, et al., Appropriating the Returns from Industrial Research and Development, 1987 Brookings Papers on Econ. Activity 728, 818 (1987) (“Since the impact of legal protection of intellectual property depends on the strength of other appropriability mechanisms and varies widely among industries, focused efforts to solve problems in specific markets would be more prudent than a broad attempt to upgrade
Vol ## THE PROBLEM OF UNIFORMITY COST tailoring by treaty;(2)legislative tailoring, (3) judicial tailoring,(4) administrative tailoring, and(5)tailoring through options. Tailoring by treaty gives the executive branch a powerful role in intellectual property policymaking. But most intellectual property treaties are not self- executing and require legislative action. It should be no surprise, then that tailoring rights by legislation is the most powerful form of adaptation since Congress is the source of these rights. Legislative tailoring in its most assertive form disaggregates information from patent or copyrigl and designates it as subject to sui generis rights. While most legislative tailoring has as its goal creating differential treatment, some provision such as those applicable to the term of patent for certain pharmaceutical drugs are aimed at overcoming differential treatment caused by regulator approval processes and making uniform the effective term of protection. Less well recognized is the practice of judicial tailor A Section IV. B, infra demonstrates, because rights under patent and copyright have to be interpreted and applied in context, the rights always are tailored for particular subject matter to some degree. For purposes of this Article, judicial tailoring requires more systematic differentiation in he application or interpretation of formally uniform righ The effectiveness of judicial tailoring for making intellectual property law more context-sensitive depends on the dimension of rights being adapted With regard to subject matter, courts have a certain amount of discretion to determine whether a work is sufficiently alo or to draw the line between unprotected idea and protected expression. Similarly determining whether a process is protectable or whether a biological organism is a"machine, "a"manufacture"or" composition of matter"6 requires the exercise of interpretive discretion through which the courts can tailor protection. As with subject matter, the scope doctrines under both patent and copyright law delegate to courts substantial discretion that can be exercised to tailor the balance of incentives and access for specific types of information. With regard to duration, however, the courts have little discretion to tailor the term of protection directly. Nonetheless, some commentators have shown that courts can use their discretion over scope protection”) See Section Ill. D, supra( describing sui generis intellectual property rights) S9 See Lunney, Quiet Revolution, supra note XX, at 47-48 60 See, e. g, Trotter Hardy, The Copyrightability of New Works of Authorship:"XML Schemas"as an Example, 38 HOUS. L REV. 855 (2001) I See State Street Bank Trust Co. v. Signature Financial Group, 149 F3d 1368(Fed Cir. 1998)(holding methods of doing business to be patentable"processes") .See, e.g, Diamond v Chakrabarty, 447 U.S. 303(1980)(holding human-made bacteria t naturally occurring to be patentable subject matter)(5-4)
Vol. ##] THE PROBLEM OF UNIFORMITY COST 19 tailoring by treaty; (2) legislative tailoring, (3) judicial tailoring, (4) administrative tailoring, and (5) tailoring through options. Tailoring by treaty gives the executive branch a powerful role in intellectual property policymaking. But most intellectual property treaties are not selfexecuting and require legislative action. It should be no surprise, then, that tailoring rights by legislation is the most powerful form of adaptation since Congress is the source of these rights. Legislative tailoring in its most assertive form disaggregates information from patent or copyright and designates it as subject to sui generis rights.58 While most legislative tailoring has as its goal creating differential treatment, some provisions, such as those applicable to the term of patent for certain pharmaceutical drugs are aimed at overcoming differential treatment caused by regulatory approval processes and making uniform the effective term of protection.59 Less well recognized is the practice of judicial tailoring. As Section IV.B, infra demonstrates, because rights under patent and copyright have to be interpreted and applied in context, the rights always are tailored for particular subject matter to some degree. For purposes of this Article, judicial tailoring requires more systematic differentiation in the application or interpretation of formally uniform rights. The effectiveness of judicial tailoring for making intellectual property law more context-sensitive depends on the dimension of rights being adapted. With regard to subject matter, courts have a certain amount of discretion to determine whether a work is sufficiently original60 or to draw the line between unprotected idea and protected expression. Similarly, determining whether a process is protectible61 or whether a biological organism is a Amachine,@ a Amanufacture@ or Acomposition of matter@ 62 requires the exercise of interpretive discretion through which the courts can tailor protection. As with subject matter, the scope doctrines under both patent and copyright law delegate to courts substantial discretion that can be exercised to tailor the balance of incentives and access for specific types of information. With regard to duration, however, the courts have little discretion to tailor the term of protection directly. Nonetheless, some commentators have shown that courts can use their discretion over scope protection.”). 58 See Section III.D., supra (describing sui generis intellectual property rights). 59 See Lunney, Quiet Revolution, supra note XX, at 47-48. 60 See, e.g., Trotter Hardy, The Copyrightability of New Works of Authorship: "XML Schemas" as an Example, 38 HOUS. L. REV. 855 (2001). 61 See State Street Bank & Trust Co. v. Signature Financial Group, 149 F.3d 1368 (Fed. Cir. 1998) (holding methods of doing business to be patentable Aprocesses@). 62 See, e.g., Diamond v. Chakrabarty, 447 U.S. 303 (1980) (holding human-made bacteria not naturally occurring to be patentable subject matter) (5-4)