Judging is hard work. So is academic research (when it’s done right). Anyone who gains the reputation of a well-prepared judge has put in some serious time mastering the relevant legal principles, as well as poring over the record in a given case. Likewise, someone who produces high-quality scholarship has to keep up with general trends in her field, and then research and write in depth on specific topics. When someone does either of these tasks well, we call them a success. When someone does both, we go further: we celebrate the presence of a rare superstar.
Judge Hsiung is just such a figure. With her first book, one could see the result of hard work and diligence. But that book grew out of Judge Hsiung’s graduate school research. (I should know: I supervised her thesis.) It took determination to turn a thesis into a book, while serving as a sitting judge. But the research, and a good part of the writing, was done as a full time student.
Now with her second book, the good Judge has ascended into superstar territory. The articles gathered in this book all come from research and writing undertaken after graduate school. This is the work of someone with a full-time, demanding job. (Two jobs, if you co unt being a mother in the mix.) It is the result of perseverance, commitment, and a deep interest in her field. When you read this book you are reading the work of someone who really wants to keep learning and developing her ideas, and to share them with others in her field. Many a judge and lawyer are occasional visitors to the world of scholarship. But Judge Hsiung is a full-time resident. She has a seriousness of purpose and a steady level of interest. I would not at this point know how to describe her: Judge-Scholar? Scholar-Judge? Let’s just skip over that debate and return to a label I used before: superstar.
Half the articles in this book are on patent-related issues; half on copyright. This shows an impressive range. There is enough complexity and detail in each field that most who study them specialize in one or the other. But I have myself crossed back and forth between them at times. I believe there is a lot of similarity in the basic structure of the two fields. And I believe the fundamental policy debates in both are similar to each other. Again, though, it takes commitment to stay on top of both. Judge Hsiung shows in this book she is up to the task.
Another facet of the book – reflected in the title – is that it treats copyrights and patents as fields that exist at the crossroads of public and private law. Practicing lawyers and even law students may find it unremarkableto treat these topics that way. After all, both sets of rights are rooted in a complex statute. Patents are issued (and sometimes revoked) by a government agency. And infringement cases in both fields are brought to the courts for resolution.
All true enough, but consider this: scholars are divided on how best to classify copyrights and patents. They often resist the “hybrid” label, insisting on one or the other: they are either regulatory instruments, creatures of public law; or private property, and thus pure private rights.
Judge Hsiung knows better. In industry, copyrights and patents are almost always considered property rights. They are issued by the state, but post-issuance, they can be licensed, sold, pledged as collateral for a loan, and included as corporate assets for purposes of investments, acquisitions, and the like. They are issued by governments, but then they become assets around which private parties structure all sorts of deals. It takes an experienced hand both to see the private law side of these rights, and to appreciate why it matters. Courts in intellectual property cases serve two distinct functions. They review the work of administrative agencies (patent and copyright offices, and trademarks too). But they also referee disputes between private actors who have structured their actions around one or more of these rights. A good intellectual property judge understands the dual nature of these rights, and brings equal sophistication to both sides of the ledger. With her work in court, and the Essays in this book, you can see that Judge Hsiung has attained that understanding. And she puts it to good work. Scholars in the field: take note!
One of the great pleasures of being a Professor is to follow the careers of students after they leave the university. Not everyone takes the same path. Private practice and in-house work are demanding and can bring great satisfaction, putting expertise to practical use and contributing to the goals of clients and in-house teams. But when one of your students – by hard work and passion for the field – exceeds all expectations by excelling at two difficult jobs, that is a very special feeling. You who have seen Judge Hsiung preside in court, or who have the good fortune to read this book, are fortunate indeed. You are in the presence of a rare person – a Dual Master, you might say. I hope you appreciate that presence as much as I do.
Robert P. Merges
最後，附上一篇2009年在日本大阪關西大學舉辦「Judicature and Minority」（司法與少數族群）國際會議上所提出之關於台灣原住民智慧創作保護法之英文報告。有趣的是，本篇是基於中文論文「變調的涼山情歌──解開衍生著作的緊箍咒」改寫而成的，事實案例同一，但討論議題不同，也算是一種新的嘗試。正逢台灣智慧財產法院成立十周年，期待舊雨新知，繼續批評指教！