Introduction:
The term ‘intellectual property’ refers to a loose cluster of legal doctrines that regulate the uses of different sorts of ideas and insignia. The law of copyright protects various ‘original forms of expression’. The economic and cultural importance of this collection of rules is increasing rapidly. And lawmakers throughout the world are busily revising their intellectual-property laws. [1] Partly as a result of these trends, scholarly interest in the field has risen dramatically in recent years. There has been an evident mushrooming of articles deploying ‘theories’ of intellectual property in law reviews and in journals of economics and philosophy. This article discusses those theories, evaluates them, and considers the roles they do and ought to play in lawmaking.
Different jurisprudential approaches in IP law making:
Most of the recent theoretical writings consist of struggles among and within four jurisprudential approaches of intellectual property law.
1.2.1 Utilitarian aspect of IP jurisprudence:
The first and most popular of the four employs the familiar utilitarian guideline that lawmakers must put emphasis on maximization of net social welfare while shaping property rights. In the context of intellectual property, it is generally thought that, lawmakers must strike an optimal balance between, on one hand, the individual rights of the creator and on the other hand maximization of public interest.
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A good example in this regard is William Landes’s and Richard Posner’s essay on copyright law [2] . The distinctive characteristics of most intellectual products are that they are easily replicated. Those characteristics in combination create a danger that the creators of such products will be unable to recoup their ‘costs of expression’ (i.e. the time and effort devoted to writing or composing and the costs of negotiating with publishers or record companies), because they will be undercut by copyists who bear only the low ‘costs of production’ (the costs of manufacturing and distributing books or CDs) and thus can offer consumers identical products at very low prices. Awareness of this danger will deter creators from making socially valuable intellectual products in the first instance. We can avoid this by allocating to the creators (for limited times) the exclusive right to make copies of their creations. All of the various alternative ways in which creators might be empowered to recover their costs are, for one reason or another, more wasteful of social resources. [3] This utilitarian rationale, however has been criticized on the ground of its tendency to create monopoly rights.
A related argument dominates the trademark law. The primary economic benefits of trademarks, are (1) the reduction of consumers’ ‘search costs’, because consumers can rely upon their prior experiences with various brands while deciding which brand to buy in future, and (2) the creation of an incentive for businesses to produce consistently high-quality goods and services. On the other hand while dealing with its criticism, trademarks can sometimes be socially harmful also, like for example, by enabling the first entrant into a market to discourage competition by appropriating for itself an especially attractive or informative brand name. Awareness of these benefits and harms should (and usually does), guide legislators and judges when tuning trademark law; marks should be (and usually are) protected when they are socially beneficial and not when they are, on balance, deleterious. [4]
1.2.2 Labour theory and its jurisprudential aspect:
Robert Nozick [5] after associating himself with Locke’s argument, Nozick turns his attention to Locke’s famously ambiguous ‘proviso’ – the proposition that a person may legitimately acquire property rights by mixing his labor with resources held ‘in common’ only if, after the acquisition, ‘there is enough and as good left in common for others.’ [6]
Nozick contends that the correct interpretation of this limitation is that the acquisition of property through labor is legitimate if and only if other persons do not suffer thereby any net harm. Construed in this fashion, the Lockean proviso is not violated, Nozick argues, by the assignment of a patent right to an inventor because, although other persons’ access to the invention is undoubtedly limited by the issuance of the patent, the invention would not have existed at all had the inventor not put in any effort due to fear of copying.
1.2.3 Personality theory and its jurisprudential aspect:
The premise of the third approach – derived loosely from the writings of Kant and Hegel i.e. private property rights are crucial to the satisfaction of some fundamental human needs; policymakers should thus strive to create and allocate entitlements to resources in the fashion that best enables people to fulfill those needs. From this standpoint, intellectual property rights may be justified either on the ground that they shield from appropriation or modification artifacts through which authors and artists have expressed their ‘wills’ (an activity thought central to “personhood”) or on the ground that they create social and economic conditions conducive to creative intellectual activity, which in turn is important to human flourishing. [7]
Justin Hughes derives from Hegel’s ‘Philosophy of Rights’ the following guidelines concerning the proper shape of an intellectual-property system (a) We should be more willing to accord legal protection to the fruits of highly expressive intellectual activities, (b) Because a person’s ‘persona’ – his ‘public image, including his physical features, mannerisms, and history’ – is an important ‘part of personality,’ it deserves generous legal protection, despite the fact that ordinarily it does not result from labor (c) Authors and inventors should be permitted to earn respect, honor, admiration, and money from the public by selling or giving away copies of their works. [8]
1.2.4 Social planning theory and its jurisprudential aspect:
The last of the four approaches says that, property rights in general – and intellectual-property rights in particular – can and should be shaped so as to help foster the achievement of a just and attractive culture. This approach is similar to utilitarianism in its orientation, but dissimilar in its willingness to deploy visions of a desirable society richer than the conceptions of ‘social welfare’ deployed by utilitarians. [9]
Other writers who have approached intellectual-property law from similar perspectives include Keith Aoki, Rosemary Coombe [10] , Niva Elkin-Koren, and Michael Madow. [11] As yet, however, this fourth approach is less well established and recognized than the other three.
1.3 Varying jurisprudential views in US, UK, France and Germany:
Until recently, the personality theory had much less currency in American law. However in contrast, it has figured very prominently in Europe. The French and German copyright regimes, for example, have been strongly shaped by the writings of Kant and Hegel. This influence is especially evident in the generous protection those countries provide for authors’ and artists’ rights. In the past two decades, ‘moral-rights’ doctrine – and the philosophic perspective on which it rests – have found increasing favor with American lawmakers, as evidenced most clearly by the proliferation of state art-preservation statutes and the recent adoption of the federal Visual Artists Rights Act. [12]
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Critical analysis of the theories of IP jurisprudence:
Lawmakers are confronted these days with many difficult questions involving rights to control information. The proponents of all four leading theories purport to provide lawmakers with answers to the upcoming questions in IP jurisprudence. Unfortunately, our choice among these four options will often make a big difference. The third, for instance, suggests that we should insist, before issuing a patent or other intellectual-property right, that the discovery in question must satisfy a meaningful ‘utility’ requirement; the other three would not. The second would counsel against conferring legal rights on artists who love their work; the other three point in the opposite direction. The fourth would suggest that we add to copyright law a requirement analogous to the patent doctrine of ‘nonobviousness’; the others would not. In short, a lawmaker’s inability to choose among the four will often be disabling.
Similar troubles arise when one tries to apply Locke’s conception of ‘the commons’ to the field of intellectual property. What exactly are the raw materials, owned by the community as a whole, with which individual workers mix their labor in order to produce intellectual products? It is agreed that IP law would have to be radically revised to conform to the Lockean scheme. But the scale of the necessary revision is daunting. Is it justifiable – on Lockean or any other premises -that if one thinks of a new way of dancing he claim IP protection and prevent everybody else from doing the same?
Similarly, by registering the trademark ‘Nike’, can one prevent others from using it in any way- including reproducing it in an essay on intellectual property? If not, then what
Is the extent of these rights?
We come, finally, to the well-known problem of proportionality. Nozick asks: If I pour my can of tomato juice into the ocean, do I own the ocean? How far, in short, do my rights go? Locke gives us little guidance. [13]
1.5 Conclusion:
The limitations of the guidance provided by general theories of intellectual property is perhaps easiest to see with respect to the last of the four approaches. Lawmakers who try to harness social-planning theory must make difficult choices at two levels. The first and most obvious involves formulating a vision of a just and attractive culture. What sort of society should we try, through adjustments of copyright, patent, and trademark law, to promote? The possibilities are endless.
Through continued conversations among scholars, legislators, judges, litigants, lobbyists, and the public at large, there may lie some hope of addressing the inadequacies of the existing theories. The analytical difficulties associated with the effort to apply the Lockean version of labor theory to intellectual property may well prove insurmountable, but there may be some non-Lockean way of capturing the popular intuition that the law should reward people for hard work. Only by continuing to discuss the possibility – and trying to bring some alternative variant of labor theory to bear on real cases – can we hope to make progress. Much the same can be said of the gaps in personality theory. The conception of selfhood employed by current theorists may be too thin and acontextual to provide lawmakers much purchase on doctrinal problems. But perhaps, through continued reflection and conversation, we can do better.
Conversational uses of intellectual property theories of the sort sketched above would be different from the way in which such theories most often have been deployed in the past. Instead of trying to compel readers, through a combination of noncontroversial premises and inexorable logic, to accept a particular interpretation or reform of legal doctrine, the jurists and lawmakers should attempt, by deploying a combination of theory and application, to strike a chord of sympathy in their audience. The sought-after response would not be, “I can’t see any loopholes in the argument,” but rather, “it needs to be acknowledged and addressed”.
That conclusion, however, does not imply that the theories have no practical use. [14] In two respects, I suggest, they retain considerable value. First, while they have failed to make good on their promises to provide comprehensive prescriptions concerning the ideal shape of intellectual-property law, they can help identify nonobvious attractive resolutions of particular problems. Second, they can foster valuable conversations among the various participants in the lawmaking process.
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