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32 McGeorge Law Review 385 (2001)


Whether a state chooses to dedicate its intellectual property to the public domain or derive revenue from the licensing of its rights, absent express authority on the subject there is uncertainty. State employees who are aware of the existence of state-owned intellectual property are not certain how it should be managed or if they are authorized to expend state resources to pursue infringement claims. Individuals and entities who wish to use state-owned intellectual property do not know how to obtain permission for such use and without permission they cannot be certain that they will not be sued for infringement. Without clear legislative directives, there is the risk that individual departments, agencies and employees may develop policies that are inconsistent with public policy and that do not comply with the rulemaking procedures of administrative law.

The absence of a comprehensive set of laws to address the extent to which a state wishes to protect and exploit its intellectual property rights or dedicate all or some of those rights to the public domain also represents a lost opportunity. Like the federal government, states have the ability to encourage and promote further innovation in the arts and sciences through the proper management and sharing of their own intellectual property. By identifying state-owned and funded inventions and dedicating some or all of those rights to the public domain, states can add to the body of knowledge that serves as the basis for future discoveries and creations. By claiming ownership of works of authorship written or developed by state employees and contractors and then freely disseminating such works, states can enhance the public's understanding of the workings of government. Finally, by asserting trademark protection in the symbols of government and enforcing such rights when necessary, states can help prevent their citizens from being confused about the source of services.

In an effort to assist states to develop a comprehensive policy for the management of their intellectual property rights, this Article begins with an overview of the four major intellectual property protection schemes, including a discussion of the practical problems that states face to secure protection under each body of law. It next discusses some of the policy and procedural issues that states must address in deciding whether and to what extent they should protect and exploit their intellectual property rights. Third, this Article examines the laws of various states in an effort to identify statutes that are potential models for legislation. This Article concludes with a proposed set of statutory provisions to govern the management of state-owned intellectual property. The premise of the legislation is that free dissemination of state-owned intellectual property should be the rule and any restrictions on the public's use of such rights should be the exception.