The treatment of customary practices has been widely debated in many areas of the law, but there has been virtually no discussion of how custom is and should be treated in the context of intellectual property (“IP”). Nevertheless, customary practices have a profound impact on both de facto and de jure IP law. The unarticulated incorporation of custom threatens to swallow up IP law, and replace it with industry-led IP regimes that give the public and other creators more limited rights to access and use intellectual property than were envisioned by the Constitution and Congress. This article presents a critique of the current system of unreflected and often wholesale incorporation of custom in IP law. The article then provides a theoretical framework exploring the limited ways customary practices should be considered in IP law. The analysis provides additional support to those who have criticized the incorporation of custom in tort, contract, and property law, while at the same time providing guidelines that could revolutionize the treatment of custom in IP.
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