Joy to the World!: The United Methodist Church,
Theories of Intellectual Property William Fisher The term "intellectual property" refers to a loose cluster of legal doctrines that regulate the uses of different sorts of ideas and insignia. Patent law protects inventions and some kinds of discoveries. Trademark law protects words and symbols that identify for consumers the goods and services manufactured or supplied by particular persons or firms.
Trade-secret law protects commercially valuable information soft-drink formulas, confidential marketing strategies, etc. The economic and cultural importance of this collection of rules is increasing rapidly. The fortunes of many businesses now depend heavily on intellectual-property rights.
A growing percentage of the legal profession specializes in intellectual-property disputes. And lawmakers throughout the world are busily Iessay advanced guestbook 243 their intellectual-property laws. Partly as a result of these trends, scholarly interest in the field has risen dramatically in recent years.
In law reviews and in journals of economics and philosophy, articles deploying "theories" of intellectual property have proliferated.
This essay canvasses those theories, evaluates them, and considers the roles they do and ought to play in lawmaking.
A Preliminary Survey Most of the recent theoretical writing consists of struggles among and within four approaches. Pursuit of that end in the context of intellectual property, it is generally thought, requires lawmakers to strike an optimal balance between, on one hand, the power of exclusive rights to stimulate the creation of inventions and works of art and, on the other, the partially offsetting tendency of such rights to curtail widespread public enjoyment of those creations.
A good example of scholarship in this vein is William Landes's and Richard Posner's essay Iessay advanced guestbook 243 copyright law. The distinctive characteristics of most intellectual products, Landes and Posner argue, are that they are easily replicated and that enjoyment of them by one person does not prevent enjoyment of them by other persons.
Those characteristics in combination create a danger that the creators of such products will be unable to recoup their "costs of expression" the time and effort devoted to writing or composing and the costs of negotiating with publishers or record companiesbecause 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 that danger will deter creators from making socially valuable intellectual products in the first instance. We can avoid this economically inefficient outcome by allocating to the creators for limited times the exclusive right to make copies of their creations.
The creators of works that consumers find valuable — that is, for which there are not, in the opinions of consumers, equally attractive substitutes — will be empowered thereby to charge prices for access to those works substantially greater than they could in a competitive market.
All of the various alternative ways in which creators might be empowered to recover their costs, Landes and Posner contend, are, for one reason or another, more wasteful of social resources. This utilitarian rationale, they argue, should be — andfor the most part, has been — used to shape specific doctrines within the field.
A related argument dominates the same authors' study of trademark law. The primary economic benefits of trademarks, they contend, are 1 the reduction of consumers' "search costs" because it's easier to pick a box of "Cheerios" off the grocery shelf than to read the list of ingredients on each container, and because consumers can rely upon their prior experiences with various brands of cereal when deciding which box to buy in the future and 2 the creation of an incentive for businesses to produce consistently high-quality goods and services because they know that their competitors cannot, by imitating their distinctive marks, take a free ride on the consumer good will that results from consistent quality.
Trademarks, Landes and Posner claim, also have an unusual ancillary social benefit: To be sure, trademarks can sometimes be socially harmful — 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 doesLandes and Posner claim, 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.
A good illustration of this perspective is Robert Nozick's brief but influential discussion of patent law in Anarchy, State, and Utopia. 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.
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 without the efforts of the inventor.
In other words, consumers are helped, not hurt, by the grant of the patent. Nozick contends, however, that fidelity to Locke's theory would mandate two limitations on the inventor's entitlements. First, persons who subsequently invented the same device independently must be permitted to make and sell it.
Otherwise the assignment of the patent to the first inventor would leave them worse off.
Second, for the same reason, patents should not last longer than, on average, it would have taken someone else to invent the same device had knowledge of the invention not disabled them from inventing it independently.
Although Nozick may not have been aware of it, implementation of the first of these limitations would require a substantial reform of current patent law — which, unlike copyright law, does not contain a safe harbor for persons who dream up the same idea on their own.
The premise of the third approach — derived loosely from the writings of Kant and Hegel — is that 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.
In perhaps the most fully developed argument of this sort, Justin Hughes derives from Hegel's Philosophy of Right the following guidelines concerning the proper shape of an intellectual-property system. The last of the four approaches is rooted in the proposition 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.
Theorists who work this vein typically draw inspiration from an eclectic cluster of political and legal theorists, including Jefferson, the early Marx, the Legal Realists, and the various proponents ancient and modern of classical republicanism.
A civil society of this sort is vital, Netanel claims, to the perpetuation of democratic political institutions. It will not, however, emerge spontaneously; it must be nourished by government. In two ways, copyright law can help foster it.Description: Review of Research in Education (RRE) is a periodical volume that provides an overview and analysis of selected areas of relevant research through critical and synthesizing essays.
The editor of RRE, in close consultation with its editorial board, plays a critical role in reviewing and defining the current state of knowledge in the field.
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