At the beginning, Professor Merges’s book was like a breeze of humanity in a utilitarian society. I love to think that Intellectual Property’s (“IP”) purpose is to protect “creative works as a way of honoring and rewarding creative people”[1]. As Yohsuke notes “seems like a hope for the individual human possibility in this unequal society”[2]. Certainly, looking for foundations in philosophical doctrines give us hope; it makes us feel better to understand those rights as deserved by labor and effort, as a consequence of our free will.
After reading Locke’s chapter, just as Melanie, “I [felt] a bit foolish that I never really thought that property law might not center around this standard social utilitarian foundation before”[3], but … wait… I am still a fool!
Do we really need to “shift from social utility to fundamental rights”[4] as Professor Merges states? Do we really need to “identify the ‘optimal number’ of patented, copyrighted, and trademarked works”[5] in order to justify IP on economic principles? Does Philosophy achieve that precision? Is the lack of empirical (numerical) evidence enough to disregard utility principles as the base for IP?
Recognizing my own limitations, and the decade that has passed from the last time that I read something about Locke and Kant (first year of law school), I am not going to criticize the philosophical reasoning or how faithful the author has been in respect to Locke’s and Kant’s philosophical principles. I am leaving those topics to someone who can define “Categorical Imperative” without googling (not my case). Nevertheless, I can say that in my inexpert opinion this whole “trip” might not be necessary.
Even when there might not be “lock-solid proof that overall social welfare would decline if IP protection were suddenly removed”[6], I think that IP is based on economic reasoning. There I find its strongest and more unquestionable foundation.
Following Judge Posner’s argumentation, “in a world without patents, inventive activity would be biased toward inventions that could be kept secret”[7], inventions that involve minimum preparatory investment or inventions where the learning curve of the competitors allows the recoupment of investments without legal protection. In that world without IP there might be art and inventions, but certainly there are some of those that would not exist simply because of lack of incentives.
Furthermore, even when redistribution is not a matter of economics, many of the principles announced by Professor Merges like nonremoval, proportionality or dignity; and the rules that apply those principles, can be based in economics as a way of correcting the incentives that IP rights create.
For example, requiring that inventions are not obvious for patenting (nonremoval) is just a way to avoid overinvestment on ideas that can be discovered at low cost. In the same way, proportionality requirements are not more than a tool for limiting investments to an efficient level by limiting the scope of the right (and the profits of it). Finally, dignity and moral rights can be seen simply as non-pecuniary benefits to the inventor/artist, incentivizing more creations (not everything is money!).
If economic incentives and limits are not enough to satisfy the moral obligation of redistribution, we can certainly apply other principles and rules to achieve that goal (more limits or taxes), but this fact is not a proof that the existence of IP cannot be based on economics.
Even when economic incentives are usually clear, it can be argued that the Open Source Movement proves that IP is not necessary or that IP must be based on philosophical principles but not on economics. I do not agree; this situation can be explained by economics. Those open source programmers, apparently not motivated by economic incentives, do have economic motivations. The only difference is that those motivations are non-pecuniary or pecuniary in the long run (improve their own experience as users, recognition by their peers, long-run career benefits, etc.[8]). Those incentives might not be enough for everyone, but that only means that those programmers have a different utility function.
Assuming that people are rational, we need to create incentives for them to employ their labor, their effort and their will. Without those efforts the society will be worst off. From an economic point of view, IP is a necessary and efficient tool for creating those correct and unbiased incentives (at least for the majority of the people). Maybe there is no solid empirical evidence, but for me it seems completely rational, without appealing to philosophy.
As posted by Melanie “Merges is trying to put these conceptual ideas into an area of law that I don’t see how they fit (…) and I’m hoping the second half helps clarify some of these issues”[9] and helps me to understand why this philosophical perspective is necessary to solve those cases on the margins that supposedly utilitarianism would solve differently. “If anyone can help me understand it I would be greatly appreciative”[10].
[1] Robert P. Merges, Justifying Intellectual Property, Kindle Edition, 2011, Kindle Location 19.
[4] Merges, Justifying Intellectual Property, Kindle Location 130.
[5] Ibid., Kindle Location 118–119.
[6] Ibid., Kindle Locations 169–170.
[7] Richard A. Posner and Aspen Publishers., Economic analysis of law, Aspen casebook series (New York: Aspen Publishers, c2011.), 48. Almost all the economic arguments of this post are based on this book, even those that are not quotes.
[8] Ibid., 109–110.
[10] Ibid.
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