Partly because of my lack of firsthand understanding of Locke, Kant or Rawls, I would like to talk about what I felt by following his argument to reveal the foundations of the IP law.
To me, the conception that the core of the property right should be solely attributable to individual effort (or will power) seems like a hope for the individual human possibility in this unequal society. The achievement based on the societal contribution shall be subject to the redistribution. Even raw talent or other inborn endowments are not vested per se, and their lucky owners must show his efforts to come to deserve the right. The rich or gigantic corporations cannot be granted new property rights simply by utilizing their accumulated resources. This gives me a whole different image of the IP right.
The IP right is not something that allows gigantic corporations to extract surplus from the weak individuals, but something that can establish an equal opportunity for all who make efforts.
To realize the IP law in compliance with the maxmin rule, proper redistribution will be necessary. Given the intangible nature, we have broader options in realizing such redistribution. In addition to taxation, we can easily design the IP right compared to the tangible property. (Although we can, say, create the right of way or other burden on the land, the tangible property may not be as flexible.) It may be more probable that we can create a justifiable system for the IP right than for the tangible property.
As Professor Merges admits, the boundary between the core and periphery is very blurry. But we should note that his argument further roots in Locke’s idea of property. At least, all of us are entitled to monopolize “ourselves”, and the property right is generated in connection with labor, that is, by making use of “ourselves.” Of course, even such “ourselves” might be a creation of the societal interactions. As the author suggests, being rich or poor may become a encouragement or discouragement to make efforts. But don't we have anything “ourselves” at all? Clearly, we do (or I badly wish so). Although the range of protection may be narrow, there must be some protected area. And its protection must be so solid that it could not be restricted on the basis of other people’s interest. The protection given here is somewhat similar to a protection given to religious creed. Then, it resonates to the dignity principle.
I felt that the first half of the book is filled with the author’s positive trial not to give up a property rule with the concept of justice, and perhaps with his respect to the dignity of people.
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