6
Theories of Intellectual Property
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,” including novels, movies, musical compositions, and computer software programs. 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.) that companies attempt to conceal from their competitors. The “right of publicity” protects celebrities’ interests in their images and identities.
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 revising their intellectual-property laws.[1]
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.
I. A
Preliminary Survey
Most of the recent
theoretical writing consists of struggles among and within four
approaches. The first and most popular
of the four employs the familiar utilitarian guideline that lawmakers’ beacon
when shaping property rights should be the maximization of net social
welfare. 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 on 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 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 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 – and , for the
most part, has been – used to shape specific doctrines within the field. [2]
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: they improve the quality of our language. By increasing our stock of nouns and by
“creating words or phrases that people value for their intrinsic pleasingness
as well as their information value,” they simultaneously economize on
communication costs and make conversation more pleasurable. 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 does), Landes 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. [3]
The
second of the four approaches that currently dominate the theoretical
literature springs from the propositions that a person who labors upon
resources that are either unowned or “held in common” has a natural property
right to the fruits of his or her efforts – and that the state has a duty to
respect and enforce that natural right.
These ideas, originating in the writings of John Locke, are widely
thought to be especially applicable to the field of intellectual property,
where the pertinent raw materials (facts and concepts) do seem in some sense to
be “held in common” and where labor seems to contribute so importantly to the
value of finished products.[4]
A
good illustration of this perspective is Robert Nozick's brief but influential
discussion of patent law in Anarchy,
State, and Utopia. [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 ("correct" in the senses (a) that
it probably corresponds to Locke's original intent and (b) that, in any event,
it is entailed by "an adequate theory of justice") is that the
acquisition of property through labor is legitimate if and only if other
persons do not suffer thereby any net harm.
"Net harm" for these purposes includes such injuries as being
left poorer than they would have been under a regime that did not permit the
acquisition of property through labor or a constriction of the set of resources
available for their use – but does
not include a diminution in their opportunities to acquire property rights in unowned resources by being the first
to labor upon them. 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. 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]
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. (a) We should be more willing
to accord legal protection to the fruits of highly expressive intellectual
activities, such as the writing of novels, than to the fruits of less
expressive activities, such as genetic research. (b) Because a person's "persona" – his "public
image, including his physical features, mannerisms, and history" – is an
important "receptacle for 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, but should not be permitted to
surrender their right to prevent others from mutilating or misattributing their
works.[8]
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.[9] This approach is similar to utilitarianism
in its teleological orientation, but dissimilar in its willingness to deploy
visions of a desirable society richer than the conceptions of “social welfare”
deployed by utilitarians.
A
provocative example may be found in Neil Netanel's recent essay,
"Copyright and a Democratic Civil Society." Netanel begins by sketching a picture of "a robust,
participatory, and pluralist civil society," teeming with "unions,
churches, political and social movements, civic and neighborhood associations,
schools of thought, and educational institutions." In this world, all persons would enjoy both
some degree of financial independence and considerable responsibility in
shaping their local social and economic environments. 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.
The first is a production function. Copyright provides an incentive for creative expression on a wide array of political, social, and aesthetic issues, thus bolstering the discursive foundations for democratic culture and civic association. The second function is structural. Copyright supports a sector of creative and communicative activity that is relatively free from reliance on state subsidy, elite patronage, and cultural hierarchy.
Promotion
of these two objectives does not require that we retain all aspects of the
current copyright system. On the
contrary, Netanel suggests, they would be advanced more effectively by a
copyright regime trimmed along the following lines: The copyright term should be shortened, thereby increasing the
size of the "public domain" available for creative manipulation. Copyright owners' authority to control the
preparation of "derivative works" should be reduced for the same
reason. Finally, compulsory licensing
systems should be employed more frequently to balance the interests of artists
and "consumers" of their works.[10]
Other
writers who have approached intellectual-property law from similar perspectives
include Keith Aoki, Rosemary Coombe, Niva Elkin-Koren, Michael Madow, and
myself.[11] As yet, however, this fourth approach is
less well established and recognized than the other three. It does not even have a commonly accepted
label. To describe a closely analogous
perspective developed in the context of land law, Greg Alexander suggests the
term "Proprietarian" theory.[12] I find more helpful the phrase, “Social
Planning Theory."
II. Explaining the Pattern
Those, then, are (in order
of prominence and influence) the four perspectives that currently dominate
theoretical writing about intellectual property: Utilitarianism; Labor Theory; Personality Theory; and Social
Planning Theory. What accounts for the
influence of these particular approaches?
In large part, their prominence derives from the fact that they grow out
of and draw support from lines of argument that have long figured in the raw
materials of intellectual property law – constitutional provisions, case
reports, preambles to legislation, and so forth.
The
dependence of theorists on ideas formulated and popularized by judges,
legislators, and lawyers is especially obvious in the case of
utilitarianism. References to the role
of intellectual-property rights in stimulating the production of socially
valuable works riddle American law.
Thus, for example, the constitutional provision upon which the copyright
and patent statutes rest indicates that the purpose of those laws is to provide
incentives for creative intellectual efforts that will benefit the society at
large.[13] The United States Supreme Court, when
construing the copyright and patent statutes, has repeatedly insisted that
their primary objective is inducing the production and dissemination of works
of the intellect.[14] A host of lower courts have agreed.[15]
References
to the importance of rewarding authors and inventors for their labor are almost
as common. Proponents of legislative
extensions of copyright or patent protection routinely make arguments like: "Our American society is founded on the
principle that the one who creates something of value is entitled to enjoy the
fruits of his labor."[16] The United States Supreme Court often uses a
similar vocabulary. For example,
Justice Reed ended his opinion in Mazer
v. Stein with the solemn statement: "Sacrificial days devoted to . . .
creative activities deserve rewards commensurate with the services
rendered."[17] Lower court opinions and appellate arguments
frequently take the same tack.[18]
Until
recently, the personality theory had much less currency in American law. By contrast, it has long 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 "moral rights" – authors’ and artists' rights to control
the public disclosure of their works, to withdraw their works from public
circulation, to receive appropriate credit for their creations, and above all
to protect their works against mutilation or destruction. This cluster of entitlements has
traditionally been justified on the ground that a work of art embodies and
helps to realize its creator’s personality or will. 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.[19]
Finally,
deliberate efforts to craft or construe rules in order to advance a vision of a
just and attractive culture – the orientation that underlies Social Planning
Theory – can be found in almost all of the provinces of intellectual property
law. Such impulses underlie, for
example, both the harsh response of most courts when applying copyright or
trademark law to scatological humor and the generally favorable treatment they
have accorded criticism, commentary, and education. Social-planning arguments also figure prominently in current
debates concerning the appropriate scope of intellectual-property rights on the
Internet.[20]
To
summarize, one source of the prominence of utilitarian, labor, personality, and
social-planning theories in recent theoretical literature is the strength of
similar themes in judicial opinions, statutes, and appellate briefs. But two circumstances suggest that such
parallelism and resonance cannot fully explain the configuration of
contemporary theories. First, there
exist in the materials of intellectual-property law several important themes
that have not been echoed and amplified by a significant number of
theorists. Many American courts, for
example, strive when construing copyright or trademark law to reflect and
reinforce custom – either customary business practices or customary standards
of "good faith" and "fair dealing."[21] That orientation has deep roots both in the
common law in general and in the early-twentieth-century writings of the
American Legal Realists.[22] Yet few contemporary intellectual-property
theorists pay significant attention to custom.[23] Much the same can be said of concern for
privacy interests. Long a major concern
of legislators and courts,[24]
protection of privacy has been given short shrift by contemporary American
theorists.
The
second circumstance is that, in legislative and judicial materials, arguments
of the various sorts we have been considering typically are blended. Here, for example, is the preamble to
Connecticut's first copyright statute:
Whereas it is perfectly agreeable to the principles of natural equity and justice, that every author should be secured in receiving the profits that may arise from the sale of his works, and such security may encourage men of learning and genius to publish their writings; which may do honor to their country, and service to mankind . . ..[25]
Two hundred years later, in
the Harper & Row case, the
Supreme Court took a similar line:
We agree with the Court of Appeals that copyright is intended to increase and not to impede the harvest of knowledge. But we believe the Second Circuit gave insufficient deference to the scheme established by the Copyright Act for fostering the original works that provide the seed and substance of this harvest. The rights conferred by copyright are designed to assure contributors to the store of knowledge a fair return for their labors. [26]
Fairness, incentives, culture-shaping – in these and countless other passages, they swirl together. In contemporary theoretical writing, by contrast, such themes are typically disentangled and juxtaposed.
How
can we account for these two respects in which intellectual-property theory
deviates from extant legal materials?
The answer seems to be that the theorists are seeing the law through
glasses supplied by political philosophy.
In contemporary philosophic debates, natural law, utilitarianism, and
theories of the good are generally seen as incompatible perspectives.[27] It is not surprising that legal theorists,
familiar with those debates, should separate ideas about intellectual property
into similar piles.
One
additional circumstance also likely plays a part: Many contemporary intellectual-property
theorists also participate in similar arguments about the appropriate shape of
property law in general. In that arena,
there is now a well-established canon of rival perspectives, again drawn in
large part from Anglo-American political philosophy. Labor theory, utilitarianism, and personality theory are the
primary contenders.[28] We should not be surprised to see them
replicated in the context of intellectual property.
III. Gaps, Conflicts, and Ambiguities
Lawmakers are confronted
these days with many difficult questions involving rights to control
information. Should the creators of
electronic databases be able to demand compensation from users or
copyists? What degree of similarity
between two plots or two fictional characters should be necessary to trigger a
finding that one infringes the other?
Should computer software be governed by copyright law, patent law, or a sui generis legal regime? Should we expand or contract
intellectual-property protection for the configurations of consumer
products? Should time-sensitive
information (e.g., sports scores, news, financial data) gathered by one party
be shielded from copying by others?
Many other, similar problems demand attention.
The
proponents of all four of the leading theories of intellectual property purport
to provide lawmakers with answers to questions of these sorts. In other words, they understand their
arguments to be, not merely systematic accounts of the impulses that have
shaped extant legal doctrines, but guides that legislators and judges can use
in modifying or extending those doctrines in response to new technologies and
circumstances. Unfortunately, all four
theories prove in practice to be less helpful in this regard than their
proponents claim. Ambiguities, internal
inconsistencies, and the lack of crucial empirical information severely limit
their prescriptive power. Subsections
III.A.–III.D., below, explore those limitations. Section IV contends that the theories nevertheless have
considerable value.
A.
The first task in developing
a utilitarian theory of intellectual property is translating the Benthamite
ideal of the "greatest good of the greatest number" into a more
precise and administrable standard.
Most contemporary writers select for this purpose either the
"wealth-maximization" criterion, which counsels lawmakers to select
the system of rules that maximizes aggregate welfare measured by consumers'
ability and willingness to pay for goods, services, and conditions,[29]
or the "Kaldor-Hicks" criterion, under which one state of affairs is
preferred to a second state of affairs if, by moving from the second to the
first, the "gainer" from the move can, by a lump-sum
transfer, compensate the "loser" for his loss of utility and still be
better off.[30]
This
preliminary analytical maneuver is vulnerable to various objections. First, the wealth-maximization and
Kaldor-Hicks criteria, though similar, are not identical, and much may turn on
the choice between them. Next, skeptics
commonly object to both criteria on the grounds that they ignore the
incommensurability of utility functions and bias analysis in favor of the
desires of the rich, who, on average, value each dollar less than the
poor. Finally, some economists and
political theorists who draw inspiration from the rich tradition of
utilitarianism contend that both criteria (but especially the first) define
social welfare too narrowly and would prefer a more encompassing analytical
net. But because these objections are
by no means limited to the field of intellectual property and because they have
been well aired elsewhere, I will not pause to explore them here.[31]
Assume
that we are comfortable with at least one of these criteria as our beacon. How might it be applied to
intellectual-property law? What system
of rules, in other words, will most improve social welfare? It turns out that there are at least three
general ways in which we might try to answer that question:[32]
1. Incentive Theory. The first and most common of the three approaches is well illustrated by William Nordhaus’ classic treatment of patent law.[33] Norhaus was primarily concerned with determining the optimal duration of a patent, but his analysis can be applied more generally. Each increase in the duration or strength of patents, he observed, stimulates an increase in inventive activity. The resultant gains to social welfare include the discounted present value of the consumer surplus and producer surplus associated with the distribution of the intellectual products whose creation is thereby induced. At the same time, however, social welfare is reduced by such things as larger administrative costs and larger deadweight losses associated with the higher prices of intellectual products that would have been created even in the absence of the enhanced incentive. Ideally, patent duration or strength should be increased up to the point where the marginal benefits equal the marginal costs.[34]
2. Optimizing Patterns of Productivity. Many years ago, Harold Demsetz argued that the copyright and patent systems play the important roles of letting potential producers of intellectual products know what consumers want and thus channelling productive efforts in directions most likely to enhance consumer welfare.[35] In the past decade, a growing group of theorists has argued that recognition of this function justifies expanding the copyright and patent systems. In Paul Goldstein's words:
The logic of property rights dictates their extension into every corner in which people derive enjoyment and value from literary and artistic works. To stop short of these ends would deprive producers of the signals of consumer preference that trigger and direct their investments.[36]
Won’t adoption of this strategy impede public dissemination of intellectual products? Not at all, say the proponents of this approach. Sales and licenses will ensure that goods get into the hands of people who want them and are able to pay for them. Only in the rare situations in which transaction costs would prevent such voluntary exchanges should intellectual-property owners be denied absolute control over the uses of their works – either through an outright privilege (such as the fair-use doctrine) or through a compulsory licensing system.[37]
3. Rivalrous Invention. The final
approach is related to but distinguishable from the second. Its objective is to eliminate or reduce the
tendency of intellectual-property rights to foster duplicative or uncoordinated
inventive activity. The foundation for
this approach was laid by a group of economists, led by Yoram Barzel, who over
the last three decades have explored the ways in which competition among firms
complicates the impact of the patent system upon inventive activity.[38] This body of literature has sensitized legal
theorists to three stages in the inventive process at which economic waste can
occur. First, the pot of gold
represented by a patent on a pioneering, commercially valuable invention may
lure an inefficiently large number of persons and organizations into the race
to be the first to reach the invention in question. Second, the race to develop a lucrative improvement on an
existing technology may generate a similar scramble for similar reasons at the
"secondary" level. Finally,
firms may try to "invent around" technologies patented by their
rivals – that is, to develop functionally equivalent but non-infringing
technologies – efforts that, although rational from the standpoint of the
individual firm, represent a waste of social resources. Heightened awareness of these risks has
prompted legal scholars to search for possible reforms of intellectual property
law – or of related doctrines, such as antitrust law – that would mitigate the
dissipation of resources at these various sites. [39]
Serious
difficulties attend efforts to extract from any one of these approaches answers
to concrete doctrinal problems. With
respect to incentive theory, the primary problem is lack of the information
necessary to apply the analytic. To
what extent is the production of specific sorts of intellectual products
dependent upon maintenance of copyright or patent protection? With respect to some fields, some
commentators have answered: very
little. Other monetary or nonmonetary
rewards – such as profits attributable to lead time, inventors’ opportunities
to speculate in markets that will be affected by the revelation of their
inventions, the prestige enjoyed by artistic and scientific innovators,
academic tenure, and the love of art – would be sufficient to sustain current
levels of production even in the absence of intellectual-property protection.[40] Other commentators sharply disagree.[41] The truth is that we don't have enough
information to know who is right.
Empirical work has suggested that patent law has been more important in
stimulating innovation in certain industries (e.g., pharmaceuticals and
chemicals) than in others, but has failed to answer the ultimate question of
whether the stimulus to innovation is worth its costs.[42] With respect to forms of
intellectual-property protection other than patents, we know even less.
Even
if we were able to surmount this enormous hurdle – and concluded that society
would be better off, on balance, by supplying authors and inventors some sort
of special reward – major sources of uncertainty would remain. Is an intellectual-property system the best
way of providing that reward or might it be better, as Steven Shavell and
Tanguy van Ypersele have recently suggested, for a government agency to
estimate the social value of each innovation and pay the innovators that sum
out of tax revenues?[43] If the former, how far should creators'
entitlements extend? Should they
include the right to prepare "derivative works"? To block "experimental uses" of
their technologies? To suppress their
inventions? Some scholars continue to
seek the data necessary to begin to answer questions of this sort. Most have given up the game, despairing of
acquiring the kinds of information one would need.[44] Almost everyone agrees that such information
is not yet at our disposal. Until it
is, lawmakers will gain little guidance from the first variant of the
utilitarian approach.
Theorists
who seek to optimize patterns of productivity confront less severe
informational problems. To be sure,
they are obliged to make difficult judgments – often with thin data – on such
questions as whether the failure of creators to license certain uses of their
works results from the fact that such uses are worth less to consumers than
preventing them is worth to creators (in which case, the absence of licenses is
socially desirable) or from excessively high transaction costs (in which case,
the creators should be compelled to grant licenses – for free or for a
governmentally determined fee). But
inquiries of this sort are not as frighteningly complex as those that confront
incentive theorists. However, scholars
and lawmakers who take this road confront an additional problem: What is the set of productive activities the
incentives for which we are trying to adjust?
For the reasons sketched above, if we confine our attention to
intellectual products, the optimal legal doctrine may be one that confers upon
creators a very generous set of entitlements.
Only thereby will potential producers be provided refined signals
concerning how consumers wish to make use of which sorts of intellectual
products. However, as Glynn Lunney has argued, if we expand our frame of
reference, that solution proves highly problematic.[45] In virtually no field of economic activity
are innovators empowered to collect the full social value of their
innovations. The elementary
schoolteacher who develops a new technique for teaching mathematics, the
civil-rights activist who discovers a way to reduce racial tension, the
physicist who finds a way to integrate our understandings of gravity and
quantum mechanics – all of these confer on society benefits that vastly exceed
the innovators' incomes. Enlarging the
entitlements of intellectual-property owners thus might refine the signals sent
to the creators of different sorts of fiction, movies, and software concerning
consumers' preferences, but would lead to even more serious overinvestment in intellectual products
as opposed to such things as education, community activism, and primary
research. Unfortunately, Lunney's
proposed response to this problem – reducing copyright protection until the
creators of entertainment receive rewards no greater than the returns available
to innovators in other fields – would sacrifice most of the economic benefits
highlighted by Demsetz and Goldstein.
The optimal solution is thus far from clear.
Theorists
bent on avoiding redundant inventive activity have problems of their own. The most serious difficulty arises from the
fact that reducing social waste at one stage of the inventive process commonly
increases it at another. Thus, for
example, in the leading article in this subfield, Edmund Kitch highlighted the
advantages of granting to the developer of a pioneering invention an expansive
set of entitlements, thereby enabling him or her to coordinate research and
development dedicated to improving the invention, thus reducing the dissipation
of rents at the secondary level.[46] However, as Robert Merges argues, granting
generous patents on pioneering inventions will exacerbate rent dissipation at
the primary level. An even greater –
and more socially wasteful – number of persons or firms will now race to be the
first to develop pioneering patents.
Mark Grady and Jay Alexander have developed an ingenious theory for
determining which of these dangers is more salient in particular cases.[47] Primary inventions that have only modest
social value but that "signal" a large potential for improvement are
likely to draw potential improvers like flies.
To cut down on the swarms, the developer of the primary invention should
be granted a broad patent of the sort commended by Kitch. Primary inventions with large social value
but minimal "signalling" power should, instead, be given only narrow
patents – to reduce the risk of duplicative activity at the primary level. Finally, and most surprisingly, socially
valuable inventions so well conceived they cannot be improved upon should be
given no patents whatsoever, thereby discouraging rent dissipation at both
levels. This typology, though
intriguing, has many defects, both practical and theoretical. To begin with, it is difficult to determine
in advance which inventions “signal” possibilities for improvement. Next, what are we to do with cases in which
the invention at issue is of a type that both is highly socially valuable (thus
creating a danger of waste at the primary level) and signals a large number of
improvements (thus creating a danger of waste at the secondary level)? Finally, Robert Merges and Richard Nelson
point out that efforts, through broad patent grants, to mitigate rent
dissipation at the secondary level may have serious economic side effects. Instead of enabling the original inventor to
coordinate efficiently the exploitation of the technology, it may lead to
"satisficing" behavior[48]
and an inefficiently narrow focus on improvements related to the primary
inventor's principal line of business.[49] In short, a combination of limited
information and theoretical tensions render this third approach just as
indeterminate in practice as the other two.[50]
Even
if the difficulties specific to each of the three economic approaches could be
resolved, an even more formidable problem would remain: there exists no general theory that
integrates the three lines of inquiry.
How should the law be adjusted in order simultaneously (i) to balance
optimally incentives for creativity and concomitant efficiency losses, (ii) to
send potential producers of all kinds of goods accurate signals concerning what
consumers want, and (iii) to minimize rent dissipation? To date, no theorist has even attempted to
answer this overarching question. Until
that challenge is successfully met, the power of the utilitarian approach to
provide guidance to lawmakers will be sharply limited.[51]
B.
Similar difficulties afflict
efforts to apply labor theory to intellectual property. The problems begin at the threshold. As was true of utilitarianism, it is not
altogether clear that the labor theory supports any sort of intellectual-property law. The source of the difficulty is ambiguity in Locke's original
rationale for property rights – from which this entire theory springs. Why exactly should labor upon a resource
held "in common" entitle the laborer to a property right in the
resource itself? Scattered in Chapter 5
of the Second Treatise can be found
six related but distinguishable answers to that question.
(1) “Natural reason" tells us that men have "a right to their Preservation," and the only practicable way in which they can sustain themselves is by individually "appropriating" materials necessary to provide them food and shelter.[52]
(2) Religious obligation reinforces the foregoing proposition. God did not merely give the Earth to man in common, but "commanded" him to "subdue" it – that is, "improve it for the benefit of Life" – which man can do only by both laboring upon it and appropriating the fruits of that labor.[53]
(3) Intuitions regarding self-ownership point in the same direction. Each person plainly has "a Property in his own Person," including the "Labour of his Body, and the Work of his Hands." It seems only natural that whatever he mixes that Labour with should belong to him as well.[54]
(4) The moral value of work reinforces the foregoing insight. God gave the World to "the Industrious and Rational, … not to the Fancy or Covetousness of the Quarrelsom and Contentious." It is thus fitting that the former acquire, through their labour, title to that which they labor upon.[55]
(5) A sense of proportionality and fairness also figures in the inquiry. Most of the value of things useful to men derives not from the value of the raw materials from which they are made, but from the labour expended on them. It is thus not "so Strange" that, when determining whether ownership should be assigned to the worker or the community, the individual "Property of labour should be able to over-balance the Community of Land."[56]
(6) Finally, Locke relies throughout the chapter on an imagery of productive transformation. By labouring upon unclaimed land or other resources, the worker changes them from wild to domestic, from raw to cultivated, from chaotic to ordered, from pointless to purposeful. The self-evident desirability of that transformation supports a reward for the worker.[57]
Whether
Locke's theory provides support for intellectual
property depends upon which of these various rationales one regards as
primary. If, for example, one sees
arguments 4 and 5 as the crux of the matter, then the Second Treatise would seem to provide strong support for most sorts
of intellectual property. After all,
most authors and inventors work hard, and their intellectual labor typically is
a far more important contributor to the total value of their creations than the
raw materials they have employed. On
the other hand, if arguments 1 and 2 are stressed, the case for
intellectual-property rights is far weaker.
As Seana Shiffrin shows, crucial to these two arguments is the
proposition that certain articles essential to life, such as food, cannot be
enjoyed in common; "their use must, of necessity, be exclusive."[58] Yet, intellectual products plainly are not
like that. Not only is access to them
typically not necessary for survival, but they can be used by an infinite
number of persons, simultaneously or in sequence, without being used up.
Whether
Locke's theory provides support for any
intellectual-property rights is thus uncertain. It depends on which aspects of Locke's original theory are
dominant. Locke did not say, and no
interpreter of his work has yet provided us a convincing way of ascertaining
his original intent.[59] Assume, however, that we somehow surmount
the barricade identified by Shiffrin and conclude that intellectual labor does
give rise to a natural entitlement to its fruits – an entitlement that the
state must recognize and enforce. Other
difficulties await us.
Perhaps
the most formidable is the question:
What, for these purposes, counts as "intellectual labor"? There are at least four plausible
candidates: (1) time and effort (hours
spent in front of the computer or in the lab); (2) activity in which one would
rather not engage (hours spent in the studio when one would rather be sailing);
(3) activity that results in social benefits (work on socially valuable
inventions); (4) creative activity (the production of new ideas). The first of the four may be closest to
Locke's original intent, but he was not focusing on intellectual labor. Justin
Hughes has shown that serious arguments can be made in support of the both the
second and the third. And Lawrence
Becker reminds us how important the fourth is to our images of deserving
authors and inventors.[60] No grounds on which we might select one or
another are readily apparent.
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 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? At least seven possibilities
come to mind:
a.
the
universe of “facts”;[61]
b.
languages
– the vocabularies and grammars we use to communicate and from which we fashion
novel intellectual products;
c.
our
cultural heritage – the set of artifacts (novels, paintings, musical
compositions, movies, etc.) that we "share" and that gives our
culture meaning and coherence;
d.
the
set of ideas currently apprehended by at least one person but not owned by
anyone;
e.
the
set of ideas currently apprehended by at least one person;
f.
the
set of all "reachable" ideas – that is, all ideas that lie within the
grasp of people today;
g.
the
set of all "possible ideas" – that is, all ideas that someone might
think of.[62]
When
applying the Lockean argument to intellectual property, it will often make a
difference which of these options one selects.
For example, option (c) is difficult to reconcile with contemporary
copyright and trademark law, under which much of our cultural heritage – Mickey
Mouse, "Gone with the Wind," the shape of a Coke bottle – is owned,
not by the community, but by individual persons or organizations; options (a)
and (b) present no such difficulty.
Patent law is consistent with option (d) but not (e) – insofar as it
permits ownership of many extant "ideas." Copyright law, which (at least formally) does not allow the
ownership of any "ideas" (only distinctive ways of
"expressing" them) meshes comfortably with either (d) or (e). As
Justin Hughes has shown, the Lockean "sufficiency" proviso can be
satisfied fairly easily if one chooses option (f) – on the theory that the
deployment of most ideas enables other people to "reach" an even
larger set of ideas and, thus, enlarges rather than subtracts from the commons. By contrast, if one adopts option (g) – as
both Wendy Gordon and Robert Nozick appear to do – the sufficiency proviso
becomes a good deal more constraining (a topic to which we will return in a
minute). Which is the correct
approach? Who knows?[63]
Suppose
we arbitrarily select one interpretation – say, option (d). Trying to fit it into the Lockean analytic
quickly gives rise to three additional, related problems. First, the act of mixing labor with a piece
of the commons does not, under any of the various extant intellectual-property
regimes, work the way Locke supposed real-property law works. When one mixes one's physical labor with a
plot of virgin land, one should acquire, Locke suggested, a natural right not
merely to the crops one produces but to the land itself. By contrast, when one mixes one's
intellectual labor with an existing idea, one acquires a property right only to
the "original" or "novel" material one has generated, not
to the idea with which one began.
Second, the set of entitlements one acquires does not have the kind of
exclusivity Locke apparently attributed to real-property rights.[64] For example, the issuance of a patent on a
better mousetrap prevents others from making that mousetrap, but not from
reading the patent and using the information contained therein to make an even
better mousetrap. The issuance of a
copyright on a novel prevents others from copying it but not from reading it,
discussing it, parodying it, and so on.
Finally, Locke suggested that the property rights one acquires through
labor upon resources held in common do and should last forever – that is, are
alienable, devisable, and inheritable indefinitely.[65] Most intellectual-property rights, by
contrast, sooner or later expire.
One
might respond that none of these observations indicates that the application of
labor-desert theory to intellectual property is indeterminate. They indicate merely that
intellectual-property law would have to be radically revised to conform to the
Lockean scheme. Perhaps. But the scale of the necessary revision is
daunting. Is it plausible – on Lockean
or any other premises – that by working to express in distinctive form the idea
that infidelity usually corrodes a marriage, one would acquire ownership of the
idea itself? Is it plausible that, by
registering the trademark "Nike," one could prevent others from using
it in any way – including reproducing it in an essay on intellectual
property? If not, then what set of more
limited entitlements would satisfy the obligation of the state to
"determine" and "settle" natural property rights? Locke's argument contains few clues.
We
have not exhausted, unfortunately, the troubles associated with the
"sufficiency" proviso. Some
of the commentators who have sought to harness Locke's argument to intellectual
property have seen little difficulty in the requirement that a laborer leave
"as much and as good" for others.
Justin Hughes, for example, emphasizes the myriad ways in which the
expansion of the set of available ideas stimulated by intellectual property
improves the lot of everyone. Robert
Nozick, as suggested above, sees the sufficiency proviso as somewhat more
constraining, but has identified to his satisfaction a way of structuring
patent law that avoids violating it.
Wendy Gordon, by contrast, construes the proviso as a much more serious
limitation on the scope of intellectual-property rights. Conferring monopoly privileges on the
creators of intellectual products, she claims, can hurt more than help the
public. Take the word "Olympics.” If the term did not exist, we would have
contrived other ways to communicate the notion of periodic amateur
international sports competitions untainted by ideology or warfare. But because the word does exist, we have
become dependent on it. No other word
or collection of words quite captures the idea. Consequently, if we now prohibit "unauthorized" uses of
the word – for example, in connection with the "Gay Olympics" or on a
t-shirt highlighting the hypocritical way in which the ideal has been applied
in recent years – we have left the public worse off than if the word never
existed. Fidelity to the Lockean
proviso (and to a more general "no-harm" principle that runs through
Locke's work), Gordon insists, requires that we withhold property rights in
situations such as these. Once again, a
wide range of interpretations of an important component of Locke's theory is
available, and no one member of the set seems plainly superior to the others.[66]
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? Analogous questions abound in
the field of intellectual property. If
I invent a drug that prevents impotence, do I deserve to collect for twenty
years the extraordinary amount of money that men throughout the world would pay
for access to the drug? If I write a
novel about a war between two space empires, may I legitimately demand
compensation from people who wish to prepare motion-picture adaptations, write
sequels, manufacture dolls based on my characters, or produce T-shirts
emblazoned with bits of my dialogue?
How far, in short, do my rights go?
Locke gives us little guidance.[67]
C.
Private property rights,
argue contemporary personality theorists, should be recognized when and only
when they would promote human flourishing by protecting or fostering
fundamental human needs or interests.
The first step in the application of this perspective to intellectual
property is identification of the specific needs or interests one wishes to
promote. As Jeremy Waldron has argued,
a wide variety of interests might be deemed fundamental, each of which arguably
could be advanced by a system of property rights. Here are some:
1.
Peace of Mind. An exclusive right to determine how certain resources shall be
used might be thought essential to avoid moral exhaustion -- the sense of guilt
that arises from awareness that one's actions, one's use of the commons,
disadvantages countless other people.[68]
2.
Privacy. Property rights may be necessary to provide persons
"refuge[s] from the general society of mankind" -- places where they
can either be alone or enjoy intimacy with others.[69]
3.
Self-Reliance. An exclusive right to control certain resources may be thought
necessary to enable persons to become independent, self-directing.[70]
4.
Self-Realization as a Social
Being. The freedom to own and thus trade things may
be necessary to enable persons to help shape their social environments and
establish their places in communities.[71]
5.
Self-Realization as an
Individual. Ownership of property may be necessary to
enable a person to assert his or her will and to be recognized as a free agent
by others.[72]
6.
Security and Leisure. Control over a certain amount of resources may be necessary to free
persons from obsession with obtaining the means of survival, the
"impulsion of desire," and thus to enable them to attend to higher
pursuits.[73]
7.
Responsibility. Virtues like prudence, self-direction, and foresight may be
cultivated by the opportunity and obligation to manage one's own resources.[74]
8.
Identity. Selfhood may be thought to depend upon the ability to project a
continuing life plan into the future, which in turn is fostered by connection
to and responsibility for property.[75]
9.
Citizenship. Ownership of a certain amount of resources might be thought
necessary to put a person in an economic and psychological position to
participate effectively in the polity.[76]
10.
Benevolence. Property rights may be thought essential to enable a person to
express ideas of what is beautiful or to enact benevolent wishes.[77]
Six
of these ten arguments – 1, 3, 4, 6, 7, 9 – provide support for some system of
intellectual-property rights but give us little guidance in deciding which entitlements to recognize. To the extent that intellectual-property
rights have economic value and may be bought and sold, gained and lost, they
may contribute to their owners' abilities to avoid guilt, become autonomous,
engage in independent political action, etc.
But those values could be promoted equally well by providing persons
rights to land or shares in private corporations. Consequently, a lawmaker persuaded by one of these claims would
be inspired to construct some system of private ownership of resources, but
would have little help in determining which resources to privatize and which to
leave to the public.
Personhood-based
guidelines for crafting intellectual-property rights thus must be found, if
anywhere, in some combination of themes 2, 5, 8, and 10: the interests of privacy, individual
self-realization, identity, and benevolence.
But the writers who have sought to extract from those sources answers to
specific questions have come to widely divergent conclusions. Here are some examples:
When an author has revealed her work to the world, does it nevertheless continue to fall within the zone of her "personhood" – so that she may legitimately claim a right to restrict its further communication? Neil Netanel, relying on an exploration of the ideal of "autonomy," thinks yes. Lloyd Weinreb, reasoning that, "once the individual has communicated her expression publicly, it takes on a 'life of its own' and . . . its further communication does not involve her autonomous self," thinks no.[78]
Assume the answer to the previous question is yes. May the author alienate his right to control the copying of his work? Kant, reasoning that "an author's interest in deciding how and when to speak [is] an inalienable part of his personality," thought no. Hegel, reasoning that expressions of mental aptitudes (as opposed to the aptitudes themselves) were "external to the author and therefore freely alienable," thought yes.[79]
Should an artist's investment of his self in a work of visual art – say, a painting or sculpture – prevent others from imitating his creation? Hegel thought not – on the ground that the copy would be "essentially a product of the copyist's own mental and technical ability." Justin Hughes seems to take the opposite position.[80]
Is the protection of trade secrets necessary to protect privacy interests? Edwin Hettinger thinks no – on the ground that most trade secrets are owned by corporations, which do not have the "personal features privacy is intended to protect.” Lynn Sharp Paine disagrees. She argues that the right to privacy includes the freedom to reveal information to a limited circle of friends or associates without fear that it will be exposed to the world – a freedom that trade-secret law shields.[81]
Is a celebrity's persona a sufficiently important repository of selfhood that other persons ought not be permitted to exploit that persona commercially without permission? Justin Hughes suggests yes, reasoning that "[a]s long as an individual identifies with his personal image, he will have a personality stake in that image." Michael Madow, insisting that the "creative (and autonomous) role of the media and the audience in the meaning-making process" are at least as important as the "personality" of the celebrity, sharply disagrees.[82]
Two
related problems underlie these and many other disagreements. First, the conceptions of the self – the
images of "personhood" that, through adjustments of
intellectual-property doctrine, we are trying to nurture or protect – that
underlie most avatars of personality theory are too abstract and thin to
provide answers to many specific questions.
Either a more fully articulated vision of human nature (that would
forthrightly address such grand questions as the importance of creativity to
the soul) or a conception of personhood tied more tightly to a particular
culture and time seems necessary if we are to provide lawmakers guidance on the
kinds of issue that beset them.
Second,
no personality theorist has yet dealt adequately with what Margaret Radin once
called the problem of fetishism.[83] Which of the many tastes exhibited by
current members of American culture should be indulged, and which should
not? The quest for individuality? Nationalism? Nostalgia for a real or imagined ethnic or racial identity? The hope that audiences will treat one's
creations with respect? The hunger for
fifteen minutes (or more) of fame?
Yearnings or orientations of all of these sorts are implicated by
intellectual-property disputes.
Deciding which merit our deference is essential to determining how those
disputes should be resolved.
D.
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.
The
range of options is illustrated by my own effort in a recent essay to bring
social-planning theory to bear on the question of the proper shape of
intellectual-property law on the Internet.
I offered, as the foundation for that analysis, a sketch of an attractive
intellectual culture. A condensed
version of that sketch follows:
Consumer Welfare. Other things being equal, a society whose members are happy is better than one whose members are, by their own lights, less happy. Applied to the field of intellectual property, this guideline urges us to select a combination of rules that will maximize consumer welfare by optimally balancing incentives for creativity with incentives for dissemination and use. That goal must, however, be tempered by other aspirations.
A Cornucopia of Information and Ideas. An attractive culture would be one in which citizens had access to a wide array of information, ideas, and forms of entertainment. Variety in this sense helps make life stimulating and enlivening. Access to a broad range of intellectual products is also crucial to widespread attainment of two related conditions central to most conceptions of the good life – namely, self-determination and self-expression – both by providing persons the materials crucial to self-construction, and by fostering a general condition of cultural diversity, which enables and compels individuals to shape themselves.
A Rich Artistic Tradition. The more complex and resonant the shared language of a culture, the more opportunities it affords its members for creativity and subtlety in communication and thought. For reasons best explored by Ronald Dworkin, recognition of that fact points toward governmental polices designed to make available to the public "a rich stock of illustrative and comparative collections of art" and, more generally, to foster "a tradition of [artistic] innovation."
Distributive Justice. To the greatest extent practicable, all persons should have access to the informational and artistic resources described above.
Semiotic Democracy. In an attractive society, all persons would be able to participate in the process of making cultural meaning. Instead of being merely passive consumers of images and artifacts produced by others, they would help shape the world of ideas and symbols in which they live.
Sociability. An attractive society is one rich in "communities of memory." Persons' capacity to construct rewarding lives will be enhanced if they have access to a variety of "constitutive" groups – in “real” space and in “virtual” space.
Respect. Appreciation of the extent to which self-expression is often a form of self-creation should make people respectful of others' work.[84]
The controversial character of a vision of this sort is
immediately apparent. Many of its
components – for example, the criterion of distributive justice – have for
centuries been the subjects of furious debate among political philosophers.[85] It is plainly implausible that theorists of
intellectual-property could resolve controversies of this scale in the course
of analyses of copyright or patent doctrine.
Unfortunately, the choice of a particular social vision
by no means exhausts the difficulties associated with this fourth
approach. Equally serious problems
commonly arise when one tries to apply such a vision to a specific doctrinal
problem. Take the problem of parody,
for example. Intellectual products that
make fun of other intellectual products are becoming increasingly common: "Don't leave home without it" on a
condom container crafted to resemble an American Express card. Comic books depicting Mickey Mouse and
Donald Duck participating in a drug-infested, promiscuous culture. Altered photographs of John Wayne suggesting
that he was homosexual, embellished with the caption, "It's a bitch to be
butch." Trademarks that allude
humorously to other trademarks ("Dom Popignon" popcorn;
"Lardache" bluejeans). Should these be permitted? The particular social vision sketched above
points in inconsistent directions. On
one hand, permitting, even encouraging, parody of this sort would seem to
facilitate semiotic democracy. Parody
erodes the control over the meanings of cultural artifacts exerted by powerful
institutions and expands opportunities for creativity by others. On the other hand, parodies (especially if
effective) may cut seriously into the legitimate personhood interests of the
artists who originally fashioned the parodied artifacts. Which of these two concerns should
predominate must be determined by reflection on the cultural context and
significance of individual cases. The
social vision on its own does not provide us much guidance.
IV. The Value of Theory
The indeterminacy of the personality and social-planning perspectives has long been recognized. That recognition is reflected, for example, in the common accusation that those perspectives are "illiberal" insofar as they seek to regulate persons' behavior on the basis of necessarily controversial "theories of the good" – the sort of thing that governments ought not do.[86] A closely related, equally common charge is that the social-planning and personhood perspectives are "paternalistic" insofar as they curtail persons' freedom on the basis of conceptions of what is "good for them" with which they themselves may not agree.[87] By contrast, the utilitarian and labor-desert approaches, especially the former, have enjoyed an aura of neutrality, objectivity, and above all determinacy.<