78238 History and Theory of Intellectual Property

Warning: The information on this page is indicative. The subject outline for a particular session, location and mode of offering is the authoritative source of all information about the subject for that offering. Required texts, recommended texts and references in particular are likely to change. Students will be provided with a subject outline once they enrol in the subject.

Subject handbook information prior to 2025 is available in the Archives.

UTS: Law
Credit points: 6 cp
Result type: Grade and marks

Requisite(s): ((22 credit points of completed study in spk(s): C07122 Graduate Diploma Legal Studies OR 22 credit points of completed study in spk(s): C04264 Master of Legal Studies)) OR 77905c Preparing for Intellectual Property Practice OR ((94 credit points of completed study in spk(s): C04236 Juris Doctor OR 142 credit points of completed study in spk(s): C04250 Juris Doctor Master of Business Administration OR 94 credit points of completed study in spk(s): C04363 Juris Doctor Master of Intellectual Property OR 94 credit points of completed study in spk(s): C04364 Juris Doctor Graduate Certificate Trade Mark Law and Practice) AND 70106c Principles of Public International Law AND 70107c Principles of Company Law) OR (70106 Principles of Public International Law AND 94 credit points of completed study in spk(s): C04320 Juris Doctor Graduate Certificate Professional Legal Practice)
The lower case 'c' after the subject code indicates that the subject is a corequisite. See definitions for details.
These requisites may not apply to students in certain courses.
There are course requisites for this subject. See access conditions.

Description

This subject covers selected topics in the history and theory of intellectual property. It gives students a background in the historical development of the areas of copyright, patents, and trade marks law, as well as approaching important questions from jurisprudence, philosophy and other theoretical perspectives in light of their application to intellectual property law.

The historical aspect of the subject informs the theoretical approach by providing students with a deeper appreciation of how these areas of law came to take their current forms, as well as highlighting how legal theory has been invoked in past controversies and contemporary ones.

Students engage in reading and discussion of key texts in the fields of property theory, law and economics, and natural rights theory. Through selected case studies, students consider how the law has developed and the effects of social, cultural and political factors, as well as the application of legal theory to aspects of legal doctrine. Students develop important skills in critical thinking and writing as part of these investigations, and in formulating their own responses to questions such as: Is intellectual property really ‘property’? How long should intellectual property rights last? What is the relationship between intellectual property law and creativity or innovation? Is intellectual property infringement the same as 'theft' or 'piracy'?

Students completing this subject develop their theoretical and historical understanding of the dynamic and contested field of intellectual property.

Subject learning objectives (SLOs)

Upon successful completion of this subject students should be able to:

1.	Reflect on and interrogate the complex nature and scope of intellectual property rights;
2.	Critically evaluate the historical development of different intellectual property rights and the historiographical field in which intellectual property historical research occurs;
3.	Critically evaluate and synthesise the key theories deployed to explain and analyse the complex nature and scope of intellectual property protection;
4.	Identify, analyse and critically evaluate research materials on the history and/or theory of intellectual property and assess their quality and relevance for advanced research in the field;
5.	Apply historical and/or theoretical approaches to areas of contemporary importance and controversy in order to generate new and advanced insights into intellectual property law;
6.	Construct clear, critical, informed and persuasive written and oral arguments synthesising advanced legal knowledge and independent research.

Teaching and learning strategies

Strategy 1: Student preparation, review and reflection outside the classroom is central to the learning in this subject. There is considerable reading required for this subject and students need to ensure they allocate time to ‘make sense’ of the materials for each seminar and test their understanding by reflecting on and considering their responses to the questions for discussion in each seminar (available on Canvas).

To ensure that classes provide the most effective learning experience, students complete prescribed reading before class and consider and make notes on the questions and themes provided to guide this reading. All learning resources including readings, seminar questions and other online sources are available on Canvas or through the UTS Library and associated databases.

A proportion of time allocated to this subject is devoted to online materials and virtual classroom activities, which is approximate to 8 hours of class time. The online lectures will provide important foundational information, which will form the basis upon which students will develop more advanced knowledge and skills of criticism and analysis. The virtual classroom activity will provide the opportunity for students to present their research to each other and gain feedback from peers and the seminar leader (Assessment item 3).

Strategy 2: This subject is based on learning in ‘small group’ seminars that are active, discussion-based and collaborative.

Seminar discussion is based on a series of prescribed readings and questions for each class (accessed via Canvas), which students reflect upon and answer before coming to class. In class, each student participates by sharing their reflections on seminar topics, answering and asking questions, and responding to and debating with their peers’ views and interpretations either in small groups or in a wider class discussion. Participating in this way allows students to test their understanding of the topics, build upon their prior learning and practise their skills of critical analysis, oral communication and presentation. Attendance at seminars is compulsory for all students, and students who do not attend each of the three intensive teaching days (without a legitimate and university-recognised excuse) will not be able to pass the subject.

Strategy 3: In class, students also work in small teams on a range of collaborative activities to help develop and test their understanding. On each day of intensive teaching, students work in small groups in order to collaboratively discuss prescribed readings and associated questions and prepare and present their findings to their peers.

These activities enable students to identify and reflect upon key themes relating to the history and theory of intellectual property law. Critical reading exercises will be carried out to equip students to work in groups practising research skills. Students will also work in small groups to present to each other. The in-class collaborative discussion also allows students to develop the oral communication skills they will need for the presentation (Assessment Item 3A) and the critical thinking skills they will need for their research essays (Assessment Items 3B and 4).

Strategy 4: Engaging with the research process requires students to investigate, evaluate, justify and apply a research methodology. This facilitates logical, original, persuasive and complex arguments in response to their research question. Students are required to research and prepare two short research essays. They will identify appropriate primary and secondary sources for addressing their research questions.

Students develop and practise their research methodology skills in class, supporting them to make logical, original, persuasive and complex arguments in response to their research questions.

Strategy 5: Regular and timely feedback is provided throughout the subject so as to assist students to maximise their potential and improve their learning with each task.

Early feedback: On the first day of intensive teaching students will both give and receive peer feedback on their critical reading abilities. Critical reading is key to the understanding and analysis of scholarly materials, and is a skill that translates into any professional context where strategic, creative or critical thinking is required. The benefit of receiving peer feedback so early on in the subject is that students immediately gain a sense of their current levels of technique and understanding and the areas they need to develop. The benefit of giving peer feedback is that it compels students to consider how the assessment criteria are applied and discern how their work may be perceived by others. Students then apply this early feedback to improve their contribution to class discussions, as well as to hone the critical analysis skills required for their presentations and research essays.

Ongoing feedback: Students have the opportunity to receive ongoing feedback from the seminar leader and their peers on their understanding of the materials through regular class participation in the intensive blocks. Students’ preparation, responses to discussion questions, and participation in seminar discussions, form an important part of their learning and enable students to practise and test their capacity to apply relevant historical or theoretical frameworks, to analyse issues relating to intellectual property, and develop their communication and self-management skills.

Oral presentation: Students receive extensive oral individual feedback from both their peers and the seminar leader when they give their presentation.

Written feedback: Students also receive written feedback on their research essays from the lecturer.

Subject Delivery: This subject is offered in intensive block mode involving three on-campus seminars (see Program) and also requires completion of an online learning module (via Canvas). Attendance at each of the three seminar days is compulsory in order to pass the subject.

Content (topics)

Introduction to Intellectual Property Law
Introduction to legal theory and legal history as they relate to Intellectual Property Law
History and theory of Copyright Law
History and theory of Trade Mark Law
History and theory of Patent Law
Case Studies and special topics (e.g., International IP, Indigenous IP, human rights and IP, new technologies and IP)

Assessment

Assessment task 1: Critical Reading Reflections

Intent:	Learning is an individual and social act and interactions with teachers and fellow students are an important source of learning. Through individual preparation and group discussion, students will develop their critical reading and advanced analytical skills. Compulsory attendance at each of the three days of intensive teaching forms the foundation for this assessment task, which enables provision of formative and early feedback on students’ development of the key skills of critical reading and analysis of scholarly materials. This task requires students to exercise judgment, practise critical reading and receive feedback on those skills, which are integral to Assessment item 2: Essay Outline, Assessment item 3: Oral Presentation and Research Essay, and Assessment item 4: Research Essay. The Critical Reading task (Assessment item 1) is Pass/Fail; completion of this assessment item is compulsory. Attendance at each of the three seminar days is compulsory in order to pass the subject (see Further information below).
Objective(s):	This task addresses the following subject learning objectives: 1, 2, 4 and 6 This task contributes specifically to the development of the following graduate attributes: .1 and .1
Weight:	Mandatory task that does not contribute to subject mark
Criteria:	Identifies the author’s perspective and evaluates the author’s argument (SLO4, GA3). Identifies and evaluates own perspective and personal knowledge (SLOs1 & 2,GA3). Constructively engages with the content of another student’s reflection (SLO4, GA3). Clarity of expression, use of appropriate language and responses formulated in clear and succinct terms (SLO6, GA5). Demonstrates ability to apply feedback from peers and seminar leader to improve performance (GA3).

Assessment task 2: Class Participation

Intent:	This assessment targets the graduate attributes of Critical Analysis and Evaluation (GA 3.0) and Communication and Collaboration (GA 5.0).
Objective(s):	This task addresses the following subject learning objectives: 1, 2, 3, 5 and 6 This task contributes specifically to the development of the following graduate attributes: .1 and .1
Weight:	20%
Length:	1000 words (nominal)
Criteria:	Coming to class prepared with questions about issues that you have not understood or which you think require further discussion. Consistent high quality participation in class discussions. Consistent high quality contributions to small group discussion. Consistent high quality participation in online activities assigned on Canvas. The ability to verbally express ideas in an orderly, clear, logical and succinct manner. The ability to deal with questions, counter arguments and interjections, and promote and / or participate in discussion. Displaying respect for other class members in your contributions and counter-arguments.

Assessment task 3: Oral Presentation and Research Essay

Objective(s):	This task addresses the following subject learning objectives: 4, 5 and 6 This task contributes specifically to the development of the following graduate attributes: .1, .1 and .1
Weight:	50%
Length:	Part A: Oral Presentation - 1000 words equivalent (10-minute presentation) Part B: Research Essay on the topic of presentation - 2000 words (excluding footnotes)
Criteria:	Part A: Object Oral Presentation - Assessment Criteria Clear, thoughtful and interesting presentation Clearly identifies a relevant ‘object’ and appropriate historical and/or theoretical perspective relevant to intellectual property law Identifies and synthesises appropriate legal and other disciplinary materials for the chosen topic Clear and appropriate slides (or similar) that provide the audience with a useful overview of the topic Effective communication of engagement with and critical analysis of materials Thoughtful and respectful responses to questions from the audience. Part B: Object Research Essay - Assessment Criteria Interpretation of the task (demonstrating understanding of the topics chosen and the nature of the task) Effective research strategy that identifies an appropriate range of legal and other disciplinary sources Articulation of a clear, critical and persuasive argument which is logically structured, coherent and supported by evidence Level of insight and innovative thought about historical and/or theoretical approaches to intellectual property law; deployment of such approaches to generate new insights into intellectual property law Effective essay structure that guides the reader through the arguments and the evidence Clear written expression with correct use of grammar, punctuation and spelling An appropriate bibliography and accurate and consistent referencing in accordance with AGLC and demonstration of judgment and responsibility in terms of academic integrity, in particular honest and complete acknowledgment of sources.

Assessment task 4: Research Essay

Intent:	This task is designed to provide students with an opportunity to conduct an in-depth investigation of an historical, theoretical, and/or historiographical (or combination of any of the preceding) issue in intellectual property law.
Objective(s):	This task addresses the following subject learning objectives: 4, 5 and 6 This task contributes specifically to the development of the following graduate attributes: .1, .1 and .1
Weight:	30%
Length:	2000 words (excluding footntoes)
Criteria:	Interpretation of the task (demonstrating understanding of the topics chosen and the nature of the task) Effective research strategy that identifies an appropriate range of legal and other disciplinary sources Articulation of a clear, critical and persuasive argument which is logically structured, coherent and supported by evidence Level of insight and innovative thought about historical and/or theoretical approaches to intellectual property law; deployment of such approaches to generate new insights into intellectual property law Effective essay structure that guides the reader through the arguments and the evidence Clear written expression with correct use of grammar, punctuation and spelling An appropriate bibliography and accurate and consistent referencing in accordance with AGLC and demonstration of judgment and responsibility in terms of academic integrity, in particular honest and complete acknowledgment of sources.

Required texts

e-Readings to be prepared for each topic

Recommended texts

Kathy Bowrey, Michael Handler, Dianne Nicol, Kimberlee Weatherall, Australian Intellectual Property (OUP, 2nd ed, 2015)

William Cornish, Intellectual Property: Omnipresent, Distracting, Irrelevant? (Clarendon, 2004)

Michael Spence, Intellectual Property (OUP, 2007)

Peter Drahos, A Philosophy of Intellectual Property (Aldershot, 1996)