Northeastern Law Professor Highlights Justice and Equality as Core to 21st Century Intellectual Property

Nearly a decade ago, a unique legal controversy emerged that challenged traditional notions of intellectual property rights. It began when Naruto, a macaque monkey in Indonesia, took a selfie using a camera set up by nature photographer David Slater. Slater had arranged the equipment to encourage the macaques to interact with it, hoping to capture novel photographs. When Naruto’s selfie gained attention, Slater sought to publish and license the image. However, the People for the Ethical Treatment of Animals (PETA) filed suit, asserting that Naruto should hold the copyright to the photo. Ultimately, a federal appeals court ruled that Naruto lacked the statutory standing to claim copyright infringement against Slater.

Jessica Silbey, professor of law at Northeastern University and director of the Center for Law, Innovation and Creativity, recounted this case during her presentation titled “Against Progress: Intellectual Property and Fundamental Values in the Internet Age” at the university’s 56th Annual Robert D. Klein Lecture. She explained that the dispute touches on the core question of authorship in copyright law.

“These debates are not about markets and money,” Silbey stated. “They are about what it means to be treated equally and with dignity, not only under copyright law, but more generally, and especially today, when the planet’s natural resources are becoming more scarce and when empathy and cooperation are necessary to survive.”

Silbey traced the evolution of intellectual property law from a marginal legal subject to a central discipline within legal practice and education. She noted the proliferation of dedicated IP centers, the increasing frequency of IP cases reaching the Supreme Court, and the prominence of IP issues in media and popular culture.

The 20th century saw intellectual property expand alongside manufacturing, scientific discovery, advertising, and entertainment industries. This growth supported capitalized industries generating billions in revenue and created jobs that enabled many to pursue the American dream.

In the 1970s, courts began addressing whether living organisms could be patented, sparking the biotechnology revolution. The inclusion of algorithms related to business methods, risk management, and data processing further increased patent filings but also led to a rise in patent litigation.

The advent of the internet introduced significant disruption to intellectual property law, leading to legal battles that extend beyond traditional market and monetary concerns. Silbey emphasized that today’s intellectual property landscape is increasingly shaped by fundamental values such as equality, privacy, distributive justice, and institutional resilience.

She observed a shift in the concept of progress within IP law. Historically, intellectual property was promoted as a mechanism to protect markets and democracy. However, many contemporary creators and innovators view IP as a potential barrier to progress. They often embrace copying and borrowing as essential to innovation. One software programmer told Silbey, “Why create a program from scratch if the algorithm already exists?”

“These accounts describe a much more tolerant, much more generous regime in which the public domain is richer and bigger,” Silbey said. “And this resonates with the original meaning of the copyright and patent clause in the Constitution.”

Concluding her lecture, Silbey urged reconsideration of prevailing narratives around progress in science and the arts. She advocated for a forward-looking approach to intellectual property law in the 21st century—one that acknowledges our mutual interdependence and shared fate on the planet.