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Intellectual Property (Stanford Encyclopedia of Philosophy/Winter 2014 Edition)
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<h1>Intellectual Property</h1><div id="pubinfo"><em>First published Tue Mar 8, 2011; substantive revision Mon Sep 22, 2014</em></div>
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<div id="preamble">
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<p>
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Intellectual property is generally characterized as non-physical
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property that is the product of original thought. Typically, rights do
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not surround the abstract non-physical entity; rather, intellectual
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property rights surround the control of physical manifestations or
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expressions of ideas. Intellectual property law protects a
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content-creator's interest in her ideas by assigning and enforcing
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legal rights to produce and control physical instantiations of those
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ideas.</p>
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<p>
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Legal protections for intellectual property have a rich history that
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stretches back to ancient Greece and before. As different legal
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systems matured in protecting intellectual works, there was a
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refinement of what was being protected within different areas.
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Over the same period several strands of moral justification for
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intellectual property were offered: namely, personality-based,
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utilitarian, and Lockean. Finally, there have been numerous
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critics of intellectual property and systems of intellectual property
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protection. This essay will discuss all of these topics, focusing
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on Anglo-American and European legal and moral conceptions of
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intellectual property.</p>
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</div>
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<div id="toc">
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<!--Entry Contents-->
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<ul>
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<li><a href="#HisIntPro">1. History of Intellectual Property</a></li>
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<li><a href="#DomIntPro">2. The Domain of Intellectual Property</a>
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<ul>
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<li><a href="#Cop">2.1 Copyright</a></li>
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<li><a href="#CreComCopLic">2.2 The Creative Commons, Copyleft, and Licensing</a></li>
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<li><a href="#Pat">2.3 Patents</a></li>
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<li><a href="#TraSec">2.4 Trade Secret</a></li>
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<li><a href="#Tra">2.5 Trademark</a></li>
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<li><a href="#ProMerIde">2.6 Protecting Mere Ideas</a></li>
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<li><a href="#DroMorConSysIntPro">2.7 Droits Morals: Continental Systems of Intellectual Property</a></li>
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</ul></li>
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<li><a href="#JusCri">3. Justifications and Critiques</a>
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<ul>
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<li><a href="#PerBasJusIntPro">3.1 Personality-Based Justifications of Intellectual Property</a></li>
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<li><a href="#UtiIncBasArgForIntPro">3.2 The Utilitarian Incentives-Based Argument for Intellectual Property</a></li>
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<li><a href="#LocJusIntPro">3.3 Lockean Justifications of Intellectual Property</a></li>
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</ul></li>
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<li><a href="#GenCriIntPro">4. General Critiques of Intellectual Property</a>
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<ul>
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<li><a href="#InfNotPro">4.1 Information is Not Property </a></li>
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<li><a href="#42InfNonRiv"> 4.2 Information is Non-Rivalrous</a></li>
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<li><a href="#InfWanFre">4.3 Information Wants to be Free </a></li>
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<li><a href="#FreSpeArgAgaIntPro">4.4 The Free Speech Argument against Intellectual Property</a></li>
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<li><a href="#SocNatInfArg">4.5 The Social Nature of Information Argument</a></li>
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<li><a href="#CosPubDigInf">4.6 The Cost of Publishing Digital Information</a></li>
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</ul></li>
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<li><a href="#Bib">Bibliography</a></li>
|
||
|
<li><a href="#Aca">Academic Tools</a></li>
|
||
|
<li><a href="#Oth">Other Internet Resources</a></li>
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<li><a href="#Rel">Related Entries</a></li>
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</ul>
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<!--Entry Contents-->
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<hr />
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</div>
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<div id="main-text">
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<h2><a id="HisIntPro">1. History of Intellectual Property</a></h2>
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|
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<p>
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One of the first known references to intellectual property
|
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protection dates from 500 B.C.E., when chefs in the Greek colony of
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Sybaris were granted year-long monopolies for creating particular
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culinary delights. There are at least three other notable
|
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references to intellectual property in ancient times—these
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cases are cited in Bruce Bugbee's formidable work <em>The Genesis of
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American Patent and Copyright Law</em> (Bugbee 1967). In the
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first case, Vitruvius (257–180 B.C.E.) is said to have revealed
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intellectual property theft during a literary contest in
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Alexandria. While serving as judge in the contest, Vitruvius
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exposed the false poets who were then tried, convicted, and disgraced
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for stealing the words and phrases of others.</p>
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<p>
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The second and third cases also come from Roman times (first century
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C.E.). Although there is no known Roman law protecting
|
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intellectual property, Roman jurists did discuss the different
|
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ownership interests associated with an intellectual work and how the
|
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work was codified—e.g., the ownership of a painting and the
|
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ownership of a table upon which the painting appears. There is also
|
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reference to literary piracy by the Roman epigrammatist Martial.
|
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|
In this case, Fidentinus is caught reciting the works of Martial
|
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|
without citing the source.</p>
|
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|
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|
<p>
|
||
|
|
||
|
These examples are generally thought to be atypical; as far as we know,
|
||
|
there were no institutions or conventions of intellectual property
|
||
|
protection in Ancient Greece or Rome. From Roman times to the
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birth of the Florentine Republic, however, there were many franchises,
|
||
|
privileges, and royal favors granted surrounding the rights to
|
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|
intellectual works. Bugbee distinguishes between franchises or
|
||
|
royal favors and systems of intellectual property in the following way:
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franchises and royal favors restrict access to intellectual works
|
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|
already in the public domain, thus these decrees take something from
|
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the people. An inventor, on the other hand, deprives the public
|
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|
of nothing that existed prior to the act of invention (Bugbee
|
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1967). One of the first statutes that protected authors'
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rights was issued by the Republic of Florence on June 19, 1421, to
|
||
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Filippo Brunelleschi, a famous architect. This statute not only
|
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|
recognized the rights of authors and inventors to the products of their
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intellectual efforts; it built in an incentive mechanism that became a
|
||
|
prominent feature of Anglo-American intellectual property protection.
|
||
|
For several reasons, including Guild influence, the Florentine patent
|
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statute of 1421 issued only the single patent to Brunelleschi. The
|
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|
basis of the first lasting patent institution of intellectual property
|
||
|
protection is found in a 1474 statute of the Venetian Republic.
|
||
|
This statute appeared 150 years before England's Statute of Monopolies;
|
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|
moreover, the system was sophisticated. The rights of inventors were
|
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|
recognized, an incentive mechanism was included, compensation for
|
||
|
infringement was established, and a term limit on inventors'
|
||
|
rights was imposed.</p>
|
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|
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<p>
|
||
|
|
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|
American institutions of intellectual property protection are based
|
||
|
on the English system that began with the Statute of Monopolies (1624)
|
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|
and the Statute of Anne (1710). The Statute of Monopolies granted
|
||
|
fourteen-year monopolies to authors and inventors and ended the
|
||
|
practice of granting rights to “non-original/new” ideas or works
|
||
|
already in the public domain. In contrast to patent institutions
|
||
|
in Europe, literary works remained largely unprotected until the
|
||
|
arrival of Gutenberg's printing press in the fifteenth century.
|
||
|
Even then there were few true copyrights granted—most were
|
||
|
grants, privileges, and monopolies.</p>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
The Statute of Anne (1710) is considered by scholars to be the first
|
||
|
statute of modern copyright. The statute begins:</p>
|
||
|
|
||
|
<blockquote>
|
||
|
|
||
|
“Whereas printers, booksellers, and other persons have lately
|
||
|
frequently taken the liberty of printing, reprinting, and publishing
|
||
|
books without the consent of the authors and proprietors … to
|
||
|
their very great detriment, and too often to the ruin of them and their
|
||
|
families: for preventing therefore such practices for the future, and
|
||
|
for the encouragement of learned men to compose and write use books, be
|
||
|
it enacted …” (Great Britain, <em>Statute of Anne</em>,
|
||
|
1710)</blockquote>
|
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|
|
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|
<p>
|
||
|
|
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|
The law gave protection to the author by granting fourteen-year
|
||
|
copyrights, with a fourteen-year renewal possible if the author was
|
||
|
still alive.</p>
|
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|
|
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|
<p>
|
||
|
|
||
|
In the landmark English case <em>Miller v. Taylor</em> (1769), the inherent
|
||
|
rights of authors to control what they produce, independent of statute
|
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or law, was affirmed. While this case was later overruled in
|
||
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<em>Donaldson v. Becket</em> (1774), the practice of recognizing the
|
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|
rights of authors had begun. Other European countries, including
|
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Belgium, Holland, Italy, and Switzerland, followed the example set by
|
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England (Bugbee, 1967). Various more recent international
|
||
|
treaties like the Berne Convention treaty and the TRIPS agreement have
|
||
|
expanded the geographic scope of intellectual property protection to
|
||
|
include most of the globe (Moore 2001).</p>
|
||
|
|
||
|
<h2><a id="DomIntPro">2. The Domain of Intellectual Property</a></h2>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
At the most practical level, the subject matter of intellectual
|
||
|
property is largely codified in Anglo-American copyright, patent, and
|
||
|
trade secret law, as well as in the moral rights granted to authors and
|
||
|
inventors within the continental European doctrine. Although
|
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these systems of property encompass much of what is thought to count as
|
||
|
intellectual property, they do not map out the entire landscape.
|
||
|
Even so, Anglo-American systems of copyright, patent, trade secret, and
|
||
|
trademark, along with certain continental doctrines, provide a rich
|
||
|
starting point for understanding intellectual property (Moore 1998,
|
||
|
2001). We'll take them up in turn.</p>
|
||
|
|
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|
<h3><a id="Cop">2.1 Copyright</a></h3>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
The domain of copyright protection is original works of authorship
|
||
|
fixed in any tangible medium of expression (17 U.S.C. §102
|
||
|
(1988)). Works that may be copyrighted include literary, musical,
|
||
|
artistic, photographic, architectural, and cinematographic works;
|
||
|
maps; and computer software. For something to be protected, it must be
|
||
|
“original”—the work must be the author's own
|
||
|
production; it cannot be the result of copying (<em>Bleistein v.
|
||
|
Donaldson Lithographing Co</em>., 188 U.S. 239 (1903)). A further
|
||
|
requirement that limits the domain of what can be copyrighted is that
|
||
|
the expression must be “non-utilitarian” or
|
||
|
“non-functional” in nature. Utilitarian products, or
|
||
|
products that are useful for work, fall, if they fall anywhere, within
|
||
|
the domain of patents. Finally, rights only extend over the actual
|
||
|
concrete expression and the derivatives of the expression—not to
|
||
|
the abstract ideas themselves For example, Einstein's Theory of
|
||
|
Relativity, as expressed in various articles and publications, is not
|
||
|
protected under copyright law. Someone else may read these
|
||
|
publications and express the theory in her own words and even receive
|
||
|
a copyright for her particular expression. Some may find this
|
||
|
troubling, but such rights are outside the domain of copyright
|
||
|
law. The individual who copies abstract theories and expresses them in
|
||
|
her own words may be guilty of plagiarism, but she cannot be held
|
||
|
liable for copyright infringement.</p>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
There are five exclusive rights that copyright owners enjoy, and three
|
||
|
major restrictions on the bundle. The five rights are: the right
|
||
|
to reproduce the work, the right to adapt it or derive other works from
|
||
|
it, the right to distribute copies of the work, the right to display
|
||
|
the work publicly, and the right to perform it publicly. Under
|
||
|
U.S. copyright law, each of these rights may be individually parsed out
|
||
|
and sold separately by the copyright owner. All five rights lapse
|
||
|
after the lifetime of the author plus 70 years—or in the case
|
||
|
of works for hire, the term is set at 95 years from publication or 120
|
||
|
years from creation, whichever comes first. Aside from limited
|
||
|
duration (17 U.S.C. §302), the rules of fair use (17 U.S.C.
|
||
|
§107) and first sale (17 U.S.C. §109(a)) also restrict the
|
||
|
rights of copyright owners. Although the notion of “fair use” is
|
||
|
notoriously hard to spell out, it is a generally recognized principle
|
||
|
of Anglo-American copyright law that allows anyone to make limited use
|
||
|
of another's copyrighted work for such purposes as criticism, comment,
|
||
|
news reporting, teaching, scholarship, and research. The
|
||
|
“first sale” rule prevents a copyright holder who has sold
|
||
|
copies of a protected work from later interfering with the subsequent
|
||
|
sale of those copies. In short, the owners of copies can do what
|
||
|
they like with their property, short of violating the copyrights
|
||
|
mentioned above.</p>
|
||
|
|
||
|
<h3><a id="CreComCopLic">2.2 The Creative Commons, Copyleft, and Licensing</a></h3>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
As a modern workaround for the first sale rule, many online content
|
||
|
providers, rather than selling a copy of a work, simply offer licensing
|
||
|
agreements (through click-wrap, shrink-wrap, etc.) that allow only
|
||
|
specific uses of protected content. These approaches to protecting
|
||
|
intellectual works are relatively new and seemingly build upon the
|
||
|
copyright systems already in place. For example, by using
|
||
|
licensing agreements to guarantee different levels of downstream
|
||
|
access, the Creative Commons and Copyleft models seek to expand the
|
||
|
commons of thought and expression (Stallman 1997; Lessig 2004).
|
||
|
An owner may allow others to build upon a protected work provided that
|
||
|
the “new” work is similarly accessible or usable.</p>
|
||
|
|
||
|
<h3><a id="Pat">2.3 Patents</a></h3>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
The domain or subject matter of patent law is the invention and
|
||
|
discovery of new and useful processes, machines, articles of
|
||
|
manufacture, or compositions of matter. There are three types of
|
||
|
patents recognized by patent law: utility patents, design patents, and
|
||
|
plant patents. Utility patents protect any new, useful, and nonobvious
|
||
|
process, machine, article of manufacture, or composition of matter, as
|
||
|
well as any new and useful improvement thereof. Design patents protect
|
||
|
any new, original, and ornamental design for an article of
|
||
|
manufacture. Finally, the subject matter of a plant patent is any new
|
||
|
variety of plant. Patent protection is the strongest form of
|
||
|
intellectual property protection, in that a twenty-year exclusive
|
||
|
monopoly is granted to the owner over any expression or implementation
|
||
|
of the protected work (35 U.S.C. §101 (1988) and 35
|
||
|
U.S.C. §154(a)(2)). </p>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
As with copyright, there are restrictions on the domain of patent
|
||
|
protection. The U.S. Patent Act requires usefulness, novelty, and
|
||
|
non-obviousness of the subject matter. The usefulness requirement
|
||
|
is typically deemed satisfied if the invention can accomplish at least
|
||
|
one of its intended purposes. Needless to say, given the expense
|
||
|
of obtaining a patent, most machines, articles of manufacture, and
|
||
|
processes are useful in this minimal sense.</p>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
A
|
||
|
more robust requirement on the subject matter of a patent is that the
|
||
|
invention defined in the claim for patent protection must be new or
|
||
|
novel. There are several categories or events, all defined by
|
||
|
statute, that can anticipate and invalidate a claim of a patent (35
|
||
|
U.S.C. §101 (1988)). In general, the novelty requirement
|
||
|
invalidates patent claims if the invention was publicly known before
|
||
|
the patent applicant invented it.</p>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
In addition to utility and novelty, the third restriction on
|
||
|
patentability is non-obviousness. United States patent law requires
|
||
|
that the invention not be obvious to one ordinarily skilled in the
|
||
|
relevant art at the time the invention was made. A hypothetical
|
||
|
individual is constructed and the question is asked, “Would this
|
||
|
invention be obvious to an expert in the relevant field?” If it
|
||
|
would be obvious to this imaginary individual then the patent claim
|
||
|
fails the test (35 U.S.C. §103).</p>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
In return for public disclosure and the ensuing dissemination of
|
||
|
information, the patent holder is granted the right to make, use,
|
||
|
sell, and authorize others to sell the patented item (35
|
||
|
U.S.C. §154 (1984 and Supp. 1989)). The bundle of rights
|
||
|
conferred by a patent excludes others from making, using, or selling
|
||
|
the invention regardless of independent creation. Like copyright,
|
||
|
patent rights lapse after a given period of time—20 years for
|
||
|
utility and plant patents, 14 for design patents. But unlike copyright
|
||
|
protection, during their period of applicability these rights preclude
|
||
|
others who independently invent the same process or machine from being
|
||
|
able to patent or market their invention.</p>
|
||
|
|
||
|
<h3><a id="TraSec">2.4 Trade Secret</a></h3>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
The subject matter of trade secret law is almost unlimited in terms of
|
||
|
the content or subject matter that may be protected and typically
|
||
|
relies on private measures, rather than state action, to preserve
|
||
|
exclusivity. “A trade secret is any information that can be used
|
||
|
in the operation of a business or other enterprise and that is
|
||
|
sufficiently valuable and secret to afford an actual or potential
|
||
|
economic advantage over others” (U.S. Legal Code, The
|
||
|
Restatement (Third) of Unfair Competition, 1995, §39). The secret
|
||
|
may be a formula for a chemical compound; a process of manufacturing,
|
||
|
treating, or preserving materials; a pattern for a machine or other
|
||
|
device; or a list of customers.</p>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
The two major restrictions on the domain of trade secrets are the
|
||
|
requirements of secrecy and competitive advantage. An
|
||
|
intellectual work is not a secret if it is generally known within the
|
||
|
industry, published in trade journals, reference books, etc., or
|
||
|
readily copyable from products on the market.</p>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
Although trade secret rights have no built-in expiration, they are
|
||
|
extremely limited in one important respect. Owners of trade
|
||
|
secrets have exclusive rights to make use of the secret only as long as
|
||
|
the secret is maintained. If the secret is made public by the
|
||
|
owner, then trade secret protection lapses and anyone can make use of
|
||
|
it. Moreover, owners' rights do not exclude independent
|
||
|
invention or discovery. Within the secrecy requirement, owners of
|
||
|
trade secrets enjoy management rights and are protected from
|
||
|
misappropriation. This latter protection is probably the most
|
||
|
important right granted, given the proliferation of industrial
|
||
|
espionage and employee theft of intellectual works.</p>
|
||
|
|
||
|
<h3><a id="Tra">2.5 Trademark</a></h3>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
The domain or subject matter of trademark is, generally speaking, the
|
||
|
good will or good name of a company. A trademark is any word,
|
||
|
name, symbol, or device, or any combination thereof, adopted by a
|
||
|
manufacturer or merchant to identify her goods and distinguish them
|
||
|
from goods produced by others (15 U.S.C. §1127 (1988)).</p>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
A major restriction on what can count as a trademark is whether or
|
||
|
not the symbol is used in everyday language. In this respect, owners
|
||
|
of trademarks do not want their symbols to become too widely used
|
||
|
because once this occurs, the trademark lapses. An example of this
|
||
|
restriction eliminating a word from trademark protection is
|
||
|
“aspirin”—as the word became a part of the common
|
||
|
culture, rights to exclusively use the trademark lapsed.</p>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
Ownership of a trademark confers upon the property holder the right to
|
||
|
use a particular mark or symbol and the right to exclude others from
|
||
|
using the same (or similar) mark or symbol. The duration of these
|
||
|
rights is limited only in cases where the mark or symbol ceases to
|
||
|
represent a company or interest, or becomes entrenched as part of the
|
||
|
common language or culture.</p>
|
||
|
|
||
|
<h3><a id="ProMerIde">2.6 Protecting Mere Ideas</a></h3>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
Outside of the regimes of copyright, patent, trade secret, and
|
||
|
trademark, there is a substantial set of case law that allows
|
||
|
individuals to protect mere ideas as personal property. This system of
|
||
|
property is typically called the “law of ideas” (Epstein
|
||
|
1992). A highly publicized case in this area is <em>Buchwald v.
|
||
|
Paramount Pictures</em> (13 U.S.P.Q. 2d 1497 (Cal. Super. Ct. 1990)),
|
||
|
concerning the Eddie Murphy movie <em>Coming to America</em>.</p>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
The law of ideas is typically applied in cases where individuals
|
||
|
produce ideas and submit them to corporations expecting to be
|
||
|
compensated. In certain cases, when these ideas are used by the
|
||
|
corporation (or anyone) without authorization, compensation may be
|
||
|
required. Before concluding that an author has property rights to
|
||
|
her idea(s), courts require the idea(s) to be novel or original
|
||
|
(<em>Murray v. National Broadcasting,</em> 844 U.S. F2d 988 (Second
|
||
|
Cir. 1988)) and concrete (<em>Hamilton Nat'l Bank v. Belt</em> (D.C.
|
||
|
Cir. 1953)). Compensation is offered only in cases of
|
||
|
misappropriation (<em>Sellers v. American Broadcasting Co</em>. (11th
|
||
|
Cir. 1982)).</p>
|
||
|
|
||
|
<h3><a id="DroMorConSysIntPro">2.7 Droits Morals: Continental Systems of Intellectual Property</a></h3>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
Article 6<em>bis</em> of the Berne Convention articulates the notion
|
||
|
of “moral rights” that are included in continental
|
||
|
European intellectual property law. The doctrine protects the personal
|
||
|
rights of creators, as distinguished from their economic rights, and
|
||
|
is generally known in France as “droits morals” or
|
||
|
“moral rights.” These moral rights consist of the right to
|
||
|
create and to publish a work in any form desired, the creator's right
|
||
|
to claim the authorship of his work, the right to prevent any
|
||
|
deformation, mutilation or other modification thereof, the right to
|
||
|
withdraw and destroy the work, the prohibition against excessive
|
||
|
criticism, and the prohibition against all other injuries to the
|
||
|
creator's personality (Roeder 1940).</p>
|
||
|
|
||
|
<h2><a id="JusCri">3. Justifications and Critiques</a></h2>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
Arguments for intellectual property rights have generally taken one
|
||
|
of three forms (Hughes 1988; Moore 2008). Personality theorists
|
||
|
maintain that intellectual property is an extension of individual
|
||
|
personality. Utilitarians ground intellectual property rights in social
|
||
|
progress and incentives to innovate. Lockeans argue that rights
|
||
|
are justified in relation to labor and merit. While each of these
|
||
|
strands of justification has its weaknesses, there are also strengths
|
||
|
unique to each.</p>
|
||
|
|
||
|
<h3><a id="PerBasJusIntPro">3.1 Personality-Based Justifications of Intellectual Property</a></h3>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
Personality theorists such as Hegel maintain that individuals have
|
||
|
moral claims to their own talents, feelings, character traits, and
|
||
|
experiences. We are self-owners in this sense. Control over physical
|
||
|
and intellectual objects is essential for self-actualization—by
|
||
|
expanding our selves outward beyond our own minds and mixing these
|
||
|
selves with tangible and intangible items, we both define ourselves
|
||
|
and obtain control over our goals and projects. For Hegel, the
|
||
|
external actualization of the human will requires property (Hegel,
|
||
|
1821). Property rights are important in two ways according to this
|
||
|
view. First, by controlling and manipulating objects, both tangible
|
||
|
and intangible, our will takes form in the world and we obtain a
|
||
|
measure of freedom. Individuals may use their physical and
|
||
|
intellectual property rights, for example, to shield their private
|
||
|
lives from public scrutiny and to facilitate life-long project
|
||
|
pursuit. Second, in some cases our personality becomes fused with an
|
||
|
object—thus moral claims to control feelings, character traits,
|
||
|
and experiences may be expanded to intangible works (Humboldt, 1792;
|
||
|
Kohler, 1969).</p>
|
||
|
|
||
|
<h4>3.1.1 Problems for Personality-Based Justifications of Intellectual
|
||
|
Property</h4>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
There are at least four problems with this view (Hughes 1988; Palmer
|
||
|
2005; Schroeder 2006). First, it is not clear that we own our
|
||
|
feelings, character traits, and experiences. While it is true
|
||
|
that we have possession of these things or that they are a part of each
|
||
|
of us, an argument is needed to establish the relevant moral
|
||
|
claims.</p>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
Second, even if it could be established that individuals own or have
|
||
|
moral claims to their personality, it does not automatically follow
|
||
|
that such claims are expanded when personalities become infused in
|
||
|
tangible or intangible works. Rather than establishing property
|
||
|
claims to such works, perhaps we should view this as an abandonment of
|
||
|
personality—similar to the sloughing off of hair and skin
|
||
|
cells. Moreover, misrepresenting an intellectual work (assuming
|
||
|
there are no moral rights to these expressions) might change the
|
||
|
perception of an author's personality, but it would not in fact
|
||
|
change their personality.</p>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
Third, assuming that moral claims to personality could be expanded
|
||
|
to tangible or intangible items, we would still need an argument
|
||
|
justifying property rights. Personality-based moral claims may
|
||
|
warrant nothing more than use rights or prohibitions against
|
||
|
alteration. Finally, there are many intellectual innovations in
|
||
|
which there is no evidence of a creator's personality—a
|
||
|
list of customers or a new safety-pin design, for instance (Hughes
|
||
|
1988). Given these challenges, personality-based theories may not
|
||
|
provide a strong moral foundation for legal systems of intellectual
|
||
|
property.</p>
|
||
|
|
||
|
<h4>3.1.2 The Personality Theorist's Rejoinder</h4>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
Even if we acknowledge the force of these objections, there does seem
|
||
|
to be something intuitively appealing about personality-based theories
|
||
|
of intellectual property rights (Moore 2008). Suppose, for
|
||
|
example, that Mr. Friday buys a painting at a garage sale—a
|
||
|
long-lost Crusoe original. Friday takes the painting home and
|
||
|
alters the painting with a marker, drawing horns and mustaches on the
|
||
|
figures in the painting. The additions are so clever and fit so
|
||
|
nicely into the painting that Friday hangs it in a window on a busy
|
||
|
street. There are at least two ethical worries to consider in
|
||
|
this case. First, the alterations by Friday may cause unjustified
|
||
|
economic damage to Crusoe. Second, and independent of the
|
||
|
economic considerations, Friday's actions may damage
|
||
|
Crusoe's reputation. The integrity of the painting has been
|
||
|
violated without the consent of the author, perhaps causing long-term
|
||
|
damage to his reputation and community standing. If these claims
|
||
|
are sensible, then it appears that we are acknowledging
|
||
|
personality-based moral “strings” attaching to certain
|
||
|
intellectual works. By producing intellectual works, authors and
|
||
|
inventors put themselves on display, so-to-speak, and incur certain
|
||
|
risks. Intellectual property rights afford authors and inventors
|
||
|
a measure of control over this risk. To put the point a different
|
||
|
way, it is the moral claims that attach to personality, reputation, and
|
||
|
the physical embodiments of these individual goods that justify legal
|
||
|
rules covering damage to reputation and certain sorts of economic
|
||
|
losses.</p>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
Moreover, personality-based theories of intellectual property often
|
||
|
appeal to other moral considerations. Hegel's
|
||
|
personality-based justification of intellectual property rights
|
||
|
included an incentive-based component as well—he asserts that
|
||
|
protecting the sciences promotes them, benefiting society (Hegel,
|
||
|
1821). Perhaps the best way to protect these intuitively
|
||
|
attractive personality-based claims to intangible works is to adopt a
|
||
|
more comprehensive system designed to promote progress and social
|
||
|
utility.</p>
|
||
|
|
||
|
<h3><a id="UtiIncBasArgForIntPro">3.2 The Utilitarian Incentives-Based Argument for Intellectual Property</a></h3>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
In terms of “justification,” modern Anglo-American systems
|
||
|
of intellectual property are typically modeled as incentive-based and
|
||
|
utilitarian (Oppenheim 1951; Machlup 1962; Boonin 1989; Hettinger
|
||
|
1989; Mackaay 1990; Coskery 1993; Palmer 1997; Moore 2001,
|
||
|
2003). On this view, a necessary condition for promoting the
|
||
|
creation of valuable intellectual works is granting limited rights of
|
||
|
ownership to authors and inventors. Absent certain guarantees,
|
||
|
authors and inventors might not engage in producing intellectual
|
||
|
property. Thus control is granted to authors and inventors of
|
||
|
intellectual property, because granting such control provides
|
||
|
incentives necessary for social progress. Although success is not
|
||
|
ensured by granting these rights, failure is inevitable if those who
|
||
|
incur no investment costs can seize and reproduce the intellectual
|
||
|
effort of others (Moore 2001, 2003). Adopting systems of protection
|
||
|
like copyright, patent, and trade secret yields an optimal amount of
|
||
|
intellectual works being produced, and a corresponding optimal amount
|
||
|
of social utility. Coupled with the theoretical claim that
|
||
|
society ought to maximize social utility, we arrive at a simple yet
|
||
|
powerful argument for the protection of intellectual property
|
||
|
rights.</p>
|
||
|
|
||
|
<h4>3.2.1 The Character of the Utilitarian Incentives-Based Argument: A Problem Shared by Both Sides </h4>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
It is crucial to note that the issue of whether intellectual property
|
||
|
protection does, or does not, sufficiently promote human happiness or
|
||
|
well-being is an empirical question that requires empirical data in
|
||
|
the form that the appropriate sociological and economic studies would
|
||
|
provide. Whether or not, for example, intellectual property
|
||
|
protection provides an incentive that elicits some optimal output of
|
||
|
content creation can be settled only by looking to the empirical
|
||
|
evidence. Likewise, whether or not intellectual property protection
|
||
|
has the effect of hindering innovation and inhibiting the production
|
||
|
of novel valuable content can be settled only by empirical
|
||
|
evidence.</p>
|
||
|
|
||
|
<p>
|
||
|
At this point, more empirical research is needed by economists and
|
||
|
sociologists, one way or another, to determine the effects of IP
|
||
|
protection on technological and artistic development. It is helpful
|
||
|
to note that more empirically based research is being done to resolve
|
||
|
these questions. Carrier (2012), one especially noteworthy recent
|
||
|
example, presents the results of interviews with 31 CEOs about the
|
||
|
results of the Napster case, as well as examines the effects of
|
||
|
copyright litigation. Although a step in the right direction, Carrier
|
||
|
(2012) illustrates some of the difficulties in obtaining persuasive
|
||
|
empirical evidence. Interviews, even with CEOs, are anecdotal in
|
||
|
character on an issue that would seem to require, among other things,
|
||
|
a comprehensive examination of the relative effects of providing
|
||
|
various forms of protection to intellectual property on important
|
||
|
indicators of economic efficiency. The difficulties involved in
|
||
|
obtaining such evidence suggest that the empirical question will
|
||
|
remain debated for some time.</p>
|
||
|
|
||
|
<h4>3.2.2 Problems for the Utilitarian Incentives-Based Argument</h4>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
Given that this argument rests on providing incentives, what is
|
||
|
needed to critique it are cases that illustrate better ways, or equally
|
||
|
good ways, of stimulating production without granting private property
|
||
|
rights to authors and inventors. It would be better to establish
|
||
|
equally powerful incentives for the production of intellectual property
|
||
|
that did not also require initial restricted use guaranteed by rights
|
||
|
(Polanyi 1943; Machlup 1962; Hettinger 1989; Waldron 1993; Moore
|
||
|
2001, 2003; Wright 1998).</p>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
One alternative to granting intellectual property rights to inventors
|
||
|
as incentive is government support of intellectual labor (Hettinger,
|
||
|
1989; Calandrillo, 1998). This could take the form of
|
||
|
government-funded research projects, with the results immediately
|
||
|
becoming public property. The question becomes: can government
|
||
|
support of intellectual labor provide enough incentive to authors and
|
||
|
inventors so that an equal or greater amount of intellectual products
|
||
|
are created compared to what is produced by conferring limited property
|
||
|
rights? Better results may also be had if fewer intellectual
|
||
|
works of higher quality were distributed to more people.</p>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
Unlike the current government-supported system of intellectual property
|
||
|
rights, reward models may be able to avoid the problems of allowing
|
||
|
monopoly control and restricting access, and at the same time provide
|
||
|
incentives to innovate (Shavell and Van Ypersele 2001). In this
|
||
|
model, innovators would still burn the midnight oil chasing that pot of
|
||
|
gold, and governments would not have to decide which projects to fund
|
||
|
or determine the amount of the rewards before the works'
|
||
|
“social value” was known. Funds necessary to pay the
|
||
|
rewards could be drawn from taxes or collecting percentages of the
|
||
|
profits of these innovations. Reward models may also avoid the
|
||
|
disadvantages of monopoly pricing, and obstructions to further
|
||
|
adaptation and innovation.</p>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
Trade secret protection appears to be the most troubling from a
|
||
|
utilitarian incentives-based perspective (Hettinger 1989). Given that
|
||
|
no disclosure is necessary for trade secret protection, promoting
|
||
|
trade secrets through incentives yields no reciprocal long-term social
|
||
|
benefit. Trade secret protection allows authors and inventors the
|
||
|
right to slow the dissemination of protected information
|
||
|
indefinitely—a trade secret necessarily requires secrecy.</p>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
Finally, empirical questions about the costs and benefits of
|
||
|
copyright, patent, and trade secret protection are notoriously
|
||
|
difficult to determine. Economists who have considered the
|
||
|
question indicate that either the jury is out, or that other
|
||
|
arrangements would be better (Machlup 1962; Priest 1986; Long 2000).
|
||
|
If we cannot appeal to the progress-enhancing features of intellectual
|
||
|
property protection, then the utilitarian can hardly appeal to such
|
||
|
progress as justification.</p>
|
||
|
|
||
|
<h4>3.2.3 The Utilitarian Rejoinder</h4>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
The utilitarian may well agree with many of these criticisms and still
|
||
|
maintain that intellectual property rights, in some form, are
|
||
|
justified—a system of protection is better than nothing at all.
|
||
|
Putting aside the last criticism, all of the worries surrounding the
|
||
|
incentive-based approach appear to focus on problems of
|
||
|
implementation. We could tinker with our system of intellectual
|
||
|
property, cutting back on some legal protections and strengthening
|
||
|
others (Coskery 1993). Perhaps we could include more
|
||
|
personality-based restrictions on what can be done with an intangible
|
||
|
work after the first sale, limit the term of copyrights, patents, and
|
||
|
trade secrets to something more reasonable, and find ways to embrace
|
||
|
technologies that promote access while protecting incentives to
|
||
|
innovate. The utilitarian might also remind us of the costs of
|
||
|
changing our system of intellectual property.</p>
|
||
|
|
||
|
<h3><a id="LocJusIntPro">3.3 Lockean Justifications of Intellectual Property</a></h3>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
A final strategy for justifying intellectual property rights begins
|
||
|
with the claim that individuals are entitled to control the fruits of
|
||
|
their labor (Hettinger 1989; Becker 1993; Gordon 1993; Moore 1997,
|
||
|
1998, 2001, 2012; Hughes 1988; Palmer 2005; Himma 2005, 2006, 2008).
|
||
|
Laboring, producing, thinking, and persevering are voluntary, and
|
||
|
individuals who engage in these activities are entitled to what they
|
||
|
produce. Subject to certain restrictions, rights are generated
|
||
|
when individuals mix their labor with an unowned object. The
|
||
|
intuition is that the person who clears unowned land, cultivates crops,
|
||
|
builds a house, or creates a new invention obtains property rights by
|
||
|
engaging in these activities.</p>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
Consider a more formal version of Locke's famous argument. Individuals
|
||
|
own their own bodies and labor—i.e., they are self-owners. When
|
||
|
an individual labors on an unowned object, her labor becomes infused
|
||
|
in the object and for the most part, the labor and the object cannot
|
||
|
be separated. It follows that once a person's labor is joined with an
|
||
|
unowned object, assuming that individuals exclusively own their body
|
||
|
and labor, rights to control are generated. The idea is that there is
|
||
|
an expansion of rights: we each own our labor and when that labor is
|
||
|
mixed with objects in the commons, our rights are expanded to include
|
||
|
these goods.</p>
|
||
|
<h4>3.3.1 Objections to Locke</h4>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
Locke's argument is not without difficulties. Jeremy
|
||
|
Waldron (1983) argued that the idea of mixing one's labor is
|
||
|
incoherent—actions cannot be mixed with objects. P. J.
|
||
|
Proudhon (1840) argued that if labor was important, the second labor on
|
||
|
an object should ground a property right in an object as reliably as
|
||
|
the first labor. Nozick (1974) asked why labor mixing generated
|
||
|
property rights rather than a loss of labor. Waldron (1983) and
|
||
|
Perry (1978) have argued that mixing one's labor with an unowned
|
||
|
object should yield more limited rights than rights of full
|
||
|
ownership. Finally, if the skills, tools, and inventions used in
|
||
|
laboring are social products, then perhaps individual claims to title
|
||
|
have been undermined (Grant 1987; Hettinger 1989).</p>
|
||
|
|
||
|
<h4>3.3.2 The Lockean Rejoinder</h4>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
Among defenders of Lockean-based arguments for private property,
|
||
|
these challenges have not gone unnoticed (Spooner 1855; Schmidtz
|
||
|
1990; Mack 1990; Simmons 1992; Child 1990; Moore 1997, 2001, 2012).
|
||
|
Rather than rehearsing the points and counterpoints,
|
||
|
consider a modified version of the Lockean argument—one that
|
||
|
does not so easily fall prey to the objections mentioned above (Moore,
|
||
|
2001, 2012):</p>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
After weeks of effort and numerous failures, suppose Ginger comes up
|
||
|
with an excellent new recipe for spicy Chinese noodles—a recipe
|
||
|
that she keeps in her mind and does not write down. Would anyone argue
|
||
|
that Ginger does not have at least some minimal moral claim to control
|
||
|
the recipe? Suppose that Fred samples some of Ginger's noodles and
|
||
|
desires to purchase the recipe. Is there anything morally suspicious
|
||
|
with an agreement between them that grants Fred a limited right to
|
||
|
use Ginger's recipe provided that Fred does not disclose the process?
|
||
|
Alas, Fred didn't have to agree to the terms and, no matter how tasty
|
||
|
the noodles, he could eat something else or create his own
|
||
|
recipe. Arguably, part of the moral weightiness of the agreement
|
||
|
between Ginger and Fred relies on the fact that Ginger holds legitimate
|
||
|
title to the recipe.</p>
|
||
|
|
||
|
<p> In small communities it may even be possible to contract with all
|
||
|
of one's fellows securing all or some of the bundle of full ownership.
|
||
|
In this sort of example, every single member of the community would be
|
||
|
directly part of the agreement. Ginger says to her peers, “if you
|
||
|
want access to my recipe, then you will have to agree to my right to
|
||
|
enjoy income” and they reply “but such rights can't be indefinite
|
||
|
… we as a community won't be on the hook for defending this
|
||
|
agreement indefinitely.” In the ensuing give-and-take an agreement is
|
||
|
hammered out. It is important to note that the moral bindingness of
|
||
|
such an agreement is crucially dependent on the initial set of
|
||
|
entitlement claims generated by labor, desert, and non-worsening. If
|
||
|
Ginger, in this case, was not the author of the recipe — suppose
|
||
|
she took it from someone else — it is not at all clear that the
|
||
|
resulting contract would be morally or legally binding.</p>
|
||
|
|
||
|
<p>
|
||
|
Moving from small communities to larger ones a more general form of
|
||
|
agreement between authors, inventors, and society can be considered.
|
||
|
If intellectual works are to be held as anything other than trade
|
||
|
secrets, walled off with narrow contracts like non-disclosure
|
||
|
agreements or non-competition arrangements, there must be a way of
|
||
|
securing access. Society may purchase access by offering limited
|
||
|
rights to authors and inventors. Moreover, if some society does not
|
||
|
offer this sort of protection, then innovators would likely employ
|
||
|
their talents in other areas or simply move to a society where such
|
||
|
agreements are recognized (Moore 2012). </p>
|
||
|
|
||
|
<h2><a id="GenCriIntPro">4. General Critiques of Intellectual Property</a></h2>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
Putting aside the strands of argument that seek to justify moral
|
||
|
claims to intangible works and the rather focused problems with these
|
||
|
views, there are several general critiques of the rights to control
|
||
|
intellectual property to consider.</p>
|
||
|
|
||
|
<h3><a id="InfNotPro">4.1 Information is Not Property </a></h3>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
Critics argue that information is not the kind of thing that can be
|
||
|
owned or possessed and is not something that can be property, as that
|
||
|
notion is typically defined. Information objects, such as numbers and
|
||
|
propositions are abstract objects, which cannot causally interact with
|
||
|
material objects, and hence cannot be owned or possessed. The idea,
|
||
|
for example, that one could, in the relevant sense, possess and hence
|
||
|
own the novel expressed by the book <em>A Tale of Two Cities</em>
|
||
|
makes as little sense as the idea that one could possess and hence own
|
||
|
the entity denoted by the symbol “2.” Whatever concepts
|
||
|
might properly be applied to abstract objects, on this view, the
|
||
|
concept of property, according to these theorists, does not. As a
|
||
|
conceptual matter, the term “intellectual property,” at
|
||
|
best, applies to nothing and, at worst, is incoherent. </p>
|
||
|
|
||
|
<p>This analysis is vulnerable to at least two objections. First, it
|
||
|
is not clear that ownership, as a conceptual matter, requires physical
|
||
|
possession. One can argue that the essence of ownership consists in a
|
||
|
power — the power to exclude others from certain behaviors
|
||
|
involving the relevant entity — and not in physical control or
|
||
|
possession of the entity. Second, the claim that information objects
|
||
|
cannot be property does not imply that it is illegitimate to grant to
|
||
|
authors or content-creators a legal right to exclude others from
|
||
|
appropriating those objects without their consent. That some entity E
|
||
|
is not “property” implies only that it should not be legally protected
|
||
|
qua property; it does not imply that E should not be protected in very
|
||
|
similar ways. It might be that such legal rights should be called
|
||
|
something other than “intellectual property rights,” but these rights
|
||
|
could be called something else, such as, for example, “intellectual
|
||
|
content rights.”</p>
|
||
|
|
||
|
<h3><a id="42InfNonRiv"> 4.2 Information is Non-Rivalrous</a></h3>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
Many have argued that the non-rivalrous nature of intellectual works
|
||
|
grounds a prima facie case against rights to restrict access.
|
||
|
Since intellectual works are not typically consumed by their use and
|
||
|
can be used by many individuals concurrently (making a copy does not
|
||
|
deprive anyone of their possessions), we have a strong case against
|
||
|
moral and legal intellectual property rights (Kuflik 1989; Hettinger
|
||
|
1989; Barlow 1997). One reason for the widespread pirating of
|
||
|
intellectual works is that many people think restricting access to
|
||
|
these works is unjustified. Consider a more formal version of
|
||
|
this argument:</p>
|
||
|
|
||
|
<dl class="hangindent">
|
||
|
|
||
|
<dt>P1.</dt><dd> If a tangible or intangible work can be used and consumed by
|
||
|
many individuals concurrently (is non-rivalrous), then maximal access
|
||
|
and use should be permitted.</dd>
|
||
|
|
||
|
<dt>
|
||
|
P2.</dt><dd> Intellectual works falling under the domains of copyright,
|
||
|
patent, and trade secret protection are non-rivalrous.</dd>
|
||
|
|
||
|
<dt>
|
||
|
C3.</dt><dd> It follows that there is an immediate prima facie case
|
||
|
<em>against</em> intellectual property rights, or <em>for</em> allowing
|
||
|
maximal access to intellectual works.</dd>
|
||
|
</dl>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
The weak point in this argument is the first premise (Moore 2001, 2010, 2012;
|
||
|
Himma, 2005). Consider sensitive personal information.
|
||
|
Moore argues that it false to claim that just because this information
|
||
|
can be used and consumed by many individuals concurrently, a prima
|
||
|
facie moral claim to maximal access is established. This argument
|
||
|
applies as well to snuff films, obscene pornography, information
|
||
|
related to national security, personal financial information, and
|
||
|
private thoughts; each are non-rivalrous, but this fact does not by
|
||
|
itself generate prima facie moral claims for maximal access and
|
||
|
use. Moreover, it is not clear that unauthorized copying does no
|
||
|
harm to the owner even in cases where the copier would not have
|
||
|
purchased a copy legitimately (and thus is not denying the owner
|
||
|
economic compensation they would otherwise receive). Unauthorized
|
||
|
copying creates un-consented to risks that owners must
|
||
|
shoulder.</p>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
Himma points out that, by itself, the claim that consumption of
|
||
|
information is non-rivalrous does not imply that we have a right of any
|
||
|
kind to those objects. While this certainly provides a reason
|
||
|
against thinking protection of intellectual property is morally
|
||
|
justified, it does not tell us anything about whether we have a right
|
||
|
of some sort because it does not contain any information about morally
|
||
|
relevant properties of human beings—and the justification of
|
||
|
general rights-claims necessarily rests on attributions of value that
|
||
|
implicitly respond to interests of beings with the appropriate level of
|
||
|
moral standing—in our case, our status as persons (Himma
|
||
|
2005).</p>
|
||
|
|
||
|
<h3><a id="InfWanFre">4.3 Information Wants to be Free </a></h3>
|
||
|
|
||
|
<p> Barlow (1997) argues that information is entitled to moral
|
||
|
consideration in virtue of being alive. On his view, information is a
|
||
|
form of life with a claim to be free that is grounded in interests and
|
||
|
“wants” of its own. As he puts the point, information
|
||
|
objects “are life forms in every respect but a basis in the
|
||
|
carbon atom. They self-reproduce, they interact with their
|
||
|
surroundings and adapt to them, they mutate, they persist.”
|
||
|
Further, these living information objects have some sort of interest
|
||
|
in being made available to everyone free of charge.</p>
|
||
|
|
||
|
<p> Barlow's argument can be challenged on a couple of grounds.
|
||
|
First, Himma (2005) argues that it is simply implausible to think of
|
||
|
abstract objects as having wants — or even interests. The
|
||
|
concept of desire is such that only conscious beings are capable of
|
||
|
having desires; although a conscious being can have subconscious
|
||
|
desires, non-sentient entitles are no more accurately characterized as
|
||
|
having desires than as having hopes. Second, even if information
|
||
|
objects had wants or interests, Barlow gives no reason for thinking
|
||
|
that they have a desire to, or interest in being made freely available
|
||
|
to all. Certainly, the claim that being made freely available to all
|
||
|
somehow benefits information objects needs an argument if for no other
|
||
|
reason than that it is counterintuitive.</p>
|
||
|
|
||
|
<h3><a id="FreSpeArgAgaIntPro">4.4 The Free Speech Argument against Intellectual Property</a></h3>
|
||
|
|
||
|
<p>
|
||
|
According to some, permitting intellectual property rights are
|
||
|
inconsistent with our commitment to freedom of thought and speech
|
||
|
(Nimmer 1970; Hettinger 1989; Waldron 1993). Hettinger argues that
|
||
|
intellectual property “restricts methods of acquiring ideas (as
|
||
|
do trade secrets), it restricts the use of ideas (as do patents), and
|
||
|
it restricts the expression of ideas (as do
|
||
|
copyrights)—restrictions undesirable for a number of
|
||
|
reasons” (Hettinger 1989). Hettinger singles out trade secrets
|
||
|
as the most troublesome because, unlike patents and copyrights, they
|
||
|
do not require disclosure.</p>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
Three sorts of replies have been offered to this kind of worry (Himma
|
||
|
2006, Moore 2010, 2012). The first notes that it is the incentives
|
||
|
found in providing limited protection that fosters the creation and
|
||
|
dissemination of information—a system of intellectual property
|
||
|
protection may cause restricted access in the short run, but overall,
|
||
|
the commons of thought and expression is enhanced. </p>
|
||
|
|
||
|
<p>Second, it is not at all clear that free speech is so presumptively
|
||
|
weighty that it nearly always trumps other values. Shouting at someone
|
||
|
over a bullhorn all day is not something we would countenance as
|
||
|
protected free speech (Moore 2010, 2012). Hate speech, obscene
|
||
|
expressions, sexual harassment, and broadcasting private medical
|
||
|
information about others are each examples of speech that we are
|
||
|
willing to limit for various reasons—perhaps intellectual
|
||
|
property rights can be viewed in this light.</p>
|
||
|
|
||
|
<p>Finally, consider the contentious, yet established, idea/expression
|
||
|
rule of copyright. Copyright only applies to fixed expressions, not
|
||
|
to the ideas that may make up a fixed expression. For example, someone
|
||
|
may read Darwin's original writings on evolution, express these ideas
|
||
|
in her own words, and obtain a copyright in the new expression. This
|
||
|
individual may be guilty of plagiarism, but so long as her expressions
|
||
|
are not copied from Einstein's original or substantially similar to
|
||
|
the original, she can obtain a copyright (Moore 2012). </p>
|
||
|
|
||
|
<h3><a id="SocNatInfArg">4.5 The Social Nature of Information Argument</a></h3>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
According to this view, information is a social product and enforcing
|
||
|
access restrictions unduly benefits authors and inventors.
|
||
|
Individuals are raised in societies that endow them with knowledge
|
||
|
which these individuals then use to create intellectual works of all
|
||
|
kinds. On this view the building blocks of intellectual
|
||
|
works—knowledge—is a social product. Individuals should
|
||
|
not have exclusive and perpetual ownership of the works that they
|
||
|
create because these works are built upon the shared knowledge of
|
||
|
society. Allowing rights to intellectual works would be similar to
|
||
|
granting ownership to the individual who placed the last brick in a
|
||
|
public works dam. The dam is a social product, built up by the efforts
|
||
|
of hundreds, and knowledge, upon which all intellectual works are
|
||
|
built, is built up in a similar fashion (Proudhon 1840; Grant 1987;
|
||
|
Shapiro 1991; Simmons 1992).</p>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
Beyond challenging whether the notion of “society” employed
|
||
|
in this view is clear enough to carry the weight that the argument
|
||
|
demands, critics have questioned the view that societies can be
|
||
|
<em>owed</em> something or that they can <em>own</em> or
|
||
|
<em>deserve</em> something (Spooner 1855; Nozick 1974; Moore 2001,
|
||
|
2010, 2012). Lysander Spooner writes
|
||
|
</p>
|
||
|
|
||
|
<blockquote>
|
||
|
“<em>What</em> rights society has, in ideas, which they did not
|
||
|
produce, and have never purchased, it would probably be very difficult
|
||
|
to define; and equally difficult to explain <em>how</em> society
|
||
|
became possessed of those rights. It certainly requires something more
|
||
|
than assertion, to prove that by simply coming to a knowledge of
|
||
|
certain ideas—the products of individual labor—society
|
||
|
acquires any valid title to them, or, consequently, any
|
||
|
<em>rights</em> in them” (Spooner 1855).
|
||
|
</blockquote>
|
||
|
|
||
|
<p>
|
||
|
Moore charges that defenders of this sort of argument fail to see that
|
||
|
it may prove too much.</p>
|
||
|
|
||
|
<blockquote>But like the defender of the first cause argument for the
|
||
|
existence of God who rides the principle of sufficient causation to a
|
||
|
certain point and then conveniently abandons it (every event or object
|
||
|
needs a sufficient cause and nothing is self-caused except God) the
|
||
|
proponent of the “shared culture” view is guilty of a similar trick.
|
||
|
“Shared culture” or the social nature of intellectual property view is
|
||
|
sufficient for undermining intellectual property rights or robust
|
||
|
control of intellectual works but conveniently not strong enough to
|
||
|
undermine student desert for a grade, criminal punishment, or other
|
||
|
sorts of moral evaluation (Moore 2012).</blockquote>
|
||
|
|
||
|
<p>
|
||
|
Finally, even if a defender of this view can justify societal
|
||
|
ownership of general pools of knowledge and information, it could be
|
||
|
argued that we have already paid for the use of this collective wisdom
|
||
|
when we pay for education and the like (Moore 1998, 2001, 2012).</p>
|
||
|
|
||
|
<h3><a id="CosPubDigInf">4.6 The Cost of Publishing Digital Information</a></h3>
|
||
|
|
||
|
<p>
|
||
|
|
||
|
Coy (2007) argues is that, in a competitive market, the cost of
|
||
|
information should properly reflect the cost of making it available to
|
||
|
users. On this line of analysis, while the cost of making publishing
|
||
|
information in traditional material media like books might be
|
||
|
sufficiently high to justify charging users a price for it, the cost
|
||
|
(per user) of making information available on digital media approaches
|
||
|
zero as the number of users grow larger. For example, there might be
|
||
|
some fixed cost involved in making information available on a website,
|
||
|
but no additional cost is required beyond that to make that content
|
||
|
available to any number of users; the more users appropriating the
|
||
|
information, the lower the cost of making it available to any
|
||
|
particular user. Thus, the argument concludes, it would be unfair to
|
||
|
charge users a fee for appropriating any piece of (digital)
|
||
|
information; information should be free (or nearly free) so as to
|
||
|
reflect its dissemination costs.</p>
|
||
|
|
||
|
<p>
|
||
|
There are two problems with this argument. First, if one accepts the
|
||
|
legitimacy of free enterprise, as appears to be presupposed by the
|
||
|
above argument, then what is a fair price will be determined by the
|
||
|
voluntary interactions of buyers and sellers in a competitive market:
|
||
|
the fair price is that which is set by the contractual transactions of
|
||
|
free, prudentially-rational buyers and sellers. If buyers in a
|
||
|
competitive market are willing to pay a price for digital information
|
||
|
that is significantly higher than the seller's marginal cost, then
|
||
|
that price can be presumed fair. Second, the argument overlooks the
|
||
|
fact that the fixed costs associated with producing and distributing
|
||
|
intellectual content can be quite high. For example, the Disney
|
||
|
Company spent more than $100 million in making the film Pearl Harbor.
|
||
|
If one assumes that a fair price is such as to allow the producer to
|
||
|
recover the fixed development costs associated with producing and
|
||
|
distributing intellectual content, this would entail that it is fair
|
||
|
for content producers to charge a price that is sufficiently above the
|
||
|
marginal costs to allow them to recover these fixed costs. </p>
|
||
|
|
||
|
</div>
|
||
|
|
||
|
<div id="bibliography">
|
||
|
|
||
|
<h2><a id="Bib">Bibliography</a></h2>
|
||
|
|
||
|
<ul class="hanging">
|
||
|
|
||
|
<li>Barlow, John Perry, 1997, “The Economy of Ideas: Everything
|
||
|
You Know about Intellectual Property is Wrong,” in
|
||
|
<em>Intellectual Property: Moral, Legal, and International
|
||
|
Dilemmas</em>, A. Moore (ed.), Lanham, MD: Rowman and Littlefield,
|
||
|
p. 359.</li>
|
||
|
|
||
|
<li>Becker, L., 1993, “Deserving to Own Intellectual
|
||
|
Property,” <em>The Chicago-Kent Law Review</em>, 68:
|
||
|
609–629.</li>
|
||
|
|
||
|
<li>Bugbee, B., 1967, <em>Genesis of American Patent and Copyright
|
||
|
Law</em>, Washington, DC: Public Affairs Press.</li>
|
||
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|
||
|
<li>Calandrillo, Steve P., 1998, “An Economic Analysis of
|
||
|
Intellectual Property Rights: Justifications and Problems of Exclusive
|
||
|
Rights, Incentives to Generate Information, and the Alternative of a
|
||
|
Government-Run Reward System,” <em>Fordham Intellectual Property,
|
||
|
Media, & Entertainment Law Journal</em>, 9: 301.</li>
|
||
|
|
||
|
<li>Child, James W., 1990, “The Moral Foundations of Intangible
|
||
|
Property,” <em>The Monist</em> 73: 578–600. Reprinted in
|
||
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Dilemmas</em>, A. Moore (ed.), Lanham, MD: Rowman and Littlefield,
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||
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1997.</li>
|
||
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|
||
|
<li>Coy, W. (2007). “On Sharing Intellectual Properties in
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Intercultural Perspective</em>, Munich: Fink Verlag; originally
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||
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<li>Croskery, Patrick, 1993, “Institutional Utilitarianism and
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<li>Epstein, M., 1992, <em>Epstein on Intellectual Property</em>,
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<li>Gordon, Wendy J., 1993, “Property Right in Self
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Intellectual Property,” <em>Yale Law Journal</em>, 102:
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<li>Grant, Ruth, 1987, <em>John Locke's Liberalism</em>, Chicago:
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Property,” <em>Philosophy and Public Affairs</em>, 18: 31–52.
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<li>Himma, Ken, 2005, “Abundance, Rights, and Interests: Thinking
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||
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||
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||
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||
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||
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||
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<li>–––, 2006, “Justifying Intellectual Property
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Protection: Why the Interests of Content-Creators Usually Wins Over
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<li>–––, 2008, “The Justification of
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Littlefield.</li>
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||
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|
||
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<li>Humboldt, Wilhelm von, 1792, <em>The Limits of State Action</em>,
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<li>Kohler, Josef, 1969, <em>Philosophy of Law</em>, Adalbert
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Albrecht (trans.). New York: A. M. Kelley.</li>
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<li>Kuflik, Arthur, 1989, “The Moral Foundations of Intellectual
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||
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||
|
Rutgers University Press.</li>
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||
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|
||
|
<li>Lessig, L., 2004, <em>Free Culture</em>, New York: The Penguin
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||
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Press.</li>
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||
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|
||
|
<li>Long, Clarisa, 2000, “Patents and Cumulative
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||
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Innovation,” <em>Washington University Journal of Law and
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||
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||
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<li>Machlup, F., 1962, <em>Production and Distribution of Knowledge in
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||
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the United States</em>, Princeton: Princeton University Press.</li>
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<li>Mack, Eric, 1990, “Self-Ownership and the Right of Property,”
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||
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<em>The Monist</em>, 73: 519–543.</li>
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||
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|
||
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<li>Mackaay, Ejan, 1990, “Economic Incentives in Markets for
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||
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Information and Innovation,” <em>The Harvard Journal of Law and
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||
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Public Policy</em>, 12: 867–909.</li>
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||
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<li>Moore, Adam D., 2012. “A Lockean Theory of Intellectual
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Property Revisited,” <em>San Diego Law Review</em>, 49:
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||
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1069. </li>
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||
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<li>–––, 2010, <em>Privacy Rights: Moral and Legal
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Foundations</em>, University Park, PA: Pennsylvania State University
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||
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Press.</li>
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<li>–––, 2008, “Personality-Based,
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Rule-Utilitarian, and Lockean Justifications of Intellectual
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Property,” in H. Tavani and K. Himma (eds.), <em>Information and
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Computer Ethics</em>, Hoboken, N.J.: John Wiley & Sons, 105–130.</li>
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<li>–––, 2007, “Privacy, Intellectual Property, and
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Hacking: Evaluating Free Access Arguments,” in <em>Internet Security:
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Hacking, Counterhacking, and Society</em>, Ken Himma (ed.), Sudbury, Mass.: Jones &
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||
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Bartlett Publishers, 235–254.</li>
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||
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|
||
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<li>–––, 2003, “Intellectual Property,
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||
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Innovation, and Social Progress: The Case against Incentives Based
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||
|
Arguments,” <em>The Hamline Law Review</em>, 26: 602–630.</li>
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||
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|
||
|
<li>–––, 2001, 2004, <em>Intellectual Property and
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Information Control: Philosophic Foundations and Contemporary
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Issues</em>, New Brunswick NJ: Transaction Publishing.</li>
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<li>–––, 1998, “A Lockean Theory of Intellectual
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Property,” <em>The Hamline Law Review</em>, 21: 65–108.</li>
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||
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Quarterly</em>, 35: 365–378.</li>
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||
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Intellectual Property,” in <em>Intellectual Property: Moral, Legal,
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and International Dilemmas</em>, A. Moore (ed.), Lanham, MD: Rowman
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& Littlefield.</li>
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Guarantees of Free Speech and Press?” <em>U.C.L.A. Law Review</em>, 17:
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Basic Books.</li>
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||
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Office Society</em>, 33: 555–568.</li>
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||
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<li>Palmer, Tom G., 2005, “Are Patents and Copyrights Morally
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||
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Justified? The Philosophy of Property Rights and Ideal
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Objects,” <em>Harvard Journal of Law and Public Policy</em> 13
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(1990): 817–866. Reprinted in <em>Information Ethics: Privacy,
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||
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Property, and Power</em>, A. Moore (ed.), Seattle: University of
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||
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Washington Press, 2005.</li>
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||
|
<li>–––, 1989, “Intellectual Property: A
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||
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Non-Posnerian Law and Economics Approach,” <em>Hamline Law
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Review</em>, 12: 261–304</li>
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|
||
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<li>Perry, Geriant., 1978, <em>John Locke</em>, London: Allen &
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Unwin.</li>
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||
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<li>Polanyi, M., 1943, “Patent Reform,” <em>Review of
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Economic Studies</em>, 11: 61.</li>
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||
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|
||
|
<li>Priest, G., 1986, “What Economists can Tell Lawyers about
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||
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Intellectual Property,” <em>Research in Law and Economics: The
|
||
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Economics of Patents and Copyrights</em>, 8: 21</li>
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||
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|
||
|
<li>Proudhon, P.J., 1840, <em>What is Property? An Inquiry into the
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||
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Smith (trans). New York: Cambridge University Press, 1994.</li>
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||
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||
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<li>Roeder, M., 1940, “The Doctrine of Moral Right: A Study in the Law
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||
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of Artists, Authors and Creators,” <em>Harvard Law Review</em>, 53:
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||
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554–578.</li>
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||
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|
||
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<li>Schroeder, Jeanne L., 2006, “Unnatural Rights: Hegel and
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||
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60: 453.</li>
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||
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||
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<li>Schmidtz, David, 1990, “When Is Original Appropriation
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||
|
Required?” <em>The Monist</em>, 73: 504–18.</li>
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||
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|
||
|
<li>Shapiro, Ian, 1991, “Resources, Capacities, and Ownership: The
|
||
|
Workmanship Ideal and Distributive Justice,” <em>Political
|
||
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Theory</em>, 19: 47–72.</li>
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||
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|
||
|
<li>Shavell, Steven and Tanguy Van Ypersele, 2001, “Rewards versus
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||
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Intellectual Property Rights,” <em>Journal of Law and
|
||
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Economics</em>, 44: 525–547.</li>
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||
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|
||
|
<li>Simmons, A. John, 1992, <em>The Lockean Theory of Rights</em>,
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||
|
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||
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|
||
|
<li>Spooner, Lysander, 1855, <em>The Law of Intellectual Property</em>,
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||
|
Weston, Mass: M & S Press, 1971.</li>
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||
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|
||
|
<li>Stallman, Richard, 1997, “Why Software Should be Free,”
|
||
|
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|
||
|
Dilemmas</em>, A. Moore (ed.), Lanham, MD: Rowman and
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||
|
Littlefield.</li>
|
||
|
|
||
|
<li>Waldron, Jeremy, 1983. “Two Worries about Mixing One's Labour,”
|
||
|
<em>Philosophical Quarterly</em>, 33: 37–44.</li>
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||
|
|
||
|
<li>–––, 1993, “From Authors To Copiers: Individual
|
||
|
Rights and Social Values In Intellectual Property,” <em>Chicago-Kent
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||
|
Law Review</em>, 68: 841–887.</li>
|
||
|
|
||
|
<li>Wright, Brian, 1998, “The Economics of Invention Incentives:
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||
|
Patents, Prizes, and Research Contracts,” <em>American Economic
|
||
|
Review</em>, 73: 691–707.</li>
|
||
|
|
||
|
</ul>
|
||
|
|
||
|
</div>
|
||
|
|
||
|
<div id="academic-tools">
|
||
|
|
||
|
<h2><a id="Aca">Academic Tools</a></h2>
|
||
|
|
||
|
<blockquote>
|
||
|
<table>
|
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<tr>
|
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<td valign="top"><img src="../../symbols/sepman-icon.jpg" alt="sep man icon" /></td>
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<h2><a id="Oth">Other Internet Resources</a></h2>
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<a href="../consequentialism/">consequentialism</a> |
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<a href="../freedom-speech/">freedom: of speech</a> |
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<a href="../locke/">Locke, John</a> |
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<a href="../../info.html#c">Copyright © 2014</a> by
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Adam Moore
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<<a href="mailto:moore2%40u%2ewashington%2eedu"><em>moore2<abbr title=" at ">@</abbr>u<abbr title=" dot ">.</abbr>washington<abbr title=" dot ">.</abbr>edu</em></a>><br />
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<a href="http://washington.academia.edu/KennethHimma" target="other">Ken Himma</a>
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