philosophic perspectives on intellectual property

8/12/2019 Philosophic Perspectives on Intellectual Property

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Philosophic Perspectives on Intellectual

Property

The term "intellectual property" refers to a loose cluster of legal doctrines that regulate the usesof different sorts of information. The law of copyright protects "original forms of expression" --novels, movies, musical compositions, computer software, etc. Patent law protects inventions --machines, processes, (also) computer software, etc. Trademark law protects words and symbolsthat identify for consumers specific goods and services -- brands of cereal, clothing, automobiles,etc. Trade-secret law protects information that companies have tried but failed to conceal fromtheir competitors -- soft-drink formulas, confidential marketing strategies, etc. The "right of publicity" protects celebrities' interests in their images and identities.

In recent years, a growing number of legal theorists have attempted either to make sense of thiscomplex field or to propose ways in which it should be reformed. Most of these efforts havetaken one of four forms:

Some theorists begin with the postulate that a person who labors upon resources that areeither unowned or "held in common" has a natural property right to the fruits of his or herefforts - 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 applicableto 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 (intellectual) labor seems tocontribute so importantly to the value of the finished product.

Others draw inspiration from the work of the Kant and Hegel, from which they derive the propositions (i) that private property rights are crucial to the satisfaction of somefundamental human needs or interests and (ii) that policymakers should thus strive toselect the set of entitlements that most conduces to human flourishing. From thesestandpoints, intellectual property rights may be justified either on the ground that theyshield from appropriation or modification artifacts through which authors and artists haveexpressed their "wills" or on the ground that they create social and economic conditionsconducive to creative intellectual activity, which in turn is important to humanflourishing.

A third group takes the view that property rights in general -- and intellectual-propertyrights in particular -- can and should be shaped so as to help foster the achievement of a just and attractive culture. Scholars who work this vein typically draw inspiration from aneclectic cluster of political and legal theorists, including Jefferson, the early Marx, theLegal Realists, and the various proponents (ancient and modern) of classicalrepublicanism.

The premise of the last -- and most popular -- of the approaches is the familiar utilitarianguideline that a lawmaker's beacon when shaping property rights should be the greatestgood of the greatest number. In other words, he should strive to select a set of



entitlements that (a) induces people to behave in ways that increase socially valuablegoods and services and (b) distributes those goods and services in the fashion thatmaximizes the net pleasures people reap from them.

The fourth of these approaches falls comfortably within the capacious family of arguments we

have described as "economic analysis of law." Accordingly, it is discussed in a separate essay on"Economic Approaches to Intellectual Property." The first and second, by contrast, draw self-consciously upon well defined traditions in political and moral philosophy. Set forth below are brief discussions of their central claims and the problems their proponents have encountered. Ifyou are curious concerning the origins of these various theories or the ways in which they havefigured in recent judicial decisions, you may wish to consult the larger essay from which thesematerials have been adapted: "Theories of Intellectual Property." [##]

I. Exercise

Before plunging into the analysis, consider the following case. (The facts have been adaptedfrom a real dispute -- the outcome of which we will tell you in due course.)

"In 1988, The Rock and Roll Hall of Fame Foundation registered the words, "THEROCK AND ROLL HALL OF FAME," as its service mark, on the principal [trademark]register at the United States Patent and Trademark Office. In 1991, the Foundationcommissioned I.M. Pei, a world famous architect, to design a facility for The Rock andRoll Hall of Fame and Museum in Cleveland, Ohio. Pei's design was brought to life onthe edge of Lake Erie, in the form of The Rock and Roll Hall of Fame and Museum which opened in September 1995.

"The Museum states that its building design is "a unique and inherently distinctivesymbol of the freedom, youthful energy, rebellion and movement of rock and roll music."Whatever its symbolism, there can be no doubt that the Museum's design is unique anddistinctive. The front of the Museum is dominated by a large, reclining, triangular facadeof steel and glass, while the rear of the building, which extends out over Lake Erie, is astriking combination of interconnected and unusually shaped, white buildings. On May 3,1996, the State of Ohio approved the registration of the Museum's building design fortrademark and service-mark purposes. The Museum has similar applications pendingwith the United States Patent and Trademark Office."

All went well for many months. The design of the building was well received, and attendance(both "actual" and "virtual") at the museum steadily increased. Popularity had a price, however.Other people began making use of the building in ways that both the Museum and I.M. Pei foundoffensive. Three of these "parasitic" activities were especially galling:

(a) A separate organization was interested in establishing a Rhythm & Blues Hall ofFame in Detroit. Impressed with Pei's design and unable to afford a comparable architectto create a novel design, they decided to construct a replica of The Rock and Roll Hall of

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Fame on the shores of Lake St. Clair.

(b) "Charles Gentile is a professional photographer whose work is marketed anddistributed through Gentile Productions. In the spring of 1996, Gentile began to sell, for $40 to $ 50, a poster featuring a photograph of the Museum against a colorful sunset. The

photograph is framed by a black border. In gold lettering in the border underneath the photograph, the words, "ROCK N' ROLL HALL OF FAME," appear above the smaller, but elongated word, "CLEVELAND." Gentile's signature appears in small blue print beneath the picture of the building. Along the right-hand side of the photograph, in veryfine print, is the following explanation: "© 1996 Gentile Productions . . . Photographed by: Charles M. Gentile[;] Design: Division Street Design[;] Paper: Mead Signature GlossCover 80 #[;] Printing: Custom Graphics Inc.[;] Finishing: Northern Ohio Finishing, Inc."One of the reasons Gentile's posters angered the Museum is that they apparently reduced popular demand for the Museums' "Official Poster."

(c) During the same period, Acme Replicas began manufacturing plastic scale models of

the building. Gifts shops in the Cleveland area purchased large quantities of the models,which they resold to tourists. The retail price of a three-inch-tall model was $10. The six-inch version sold for $25. And the "deluxe," eight-inch version (containing a music boxthat played the tune of Jimmy Hendrix's "Purple Haze") sold for $50.

Should either I.M. Pei or The Rock and Roll Hall of Fame be able to enjoin the activities of -- orrecover damages from -- any of these three parties? You might find it useful to make a note nowof your preliminary response to that question. Then, as you peruse the following materials, askyourself how each theorist we discuss might answer the same question. At the end, we will letyou know how these disputes would fare under contemporary American law.

II. Illustrations of the Philosophic Perspectives

The best way to get a feel for philosophic arguments is to see how their proponents have tried to put them to work. Once we have witnessed the theories in action, we will consider in more detailthe complexities and difficulties associated with them.

A. The Significance of Labor

A fine illustration of the labor-desert theory 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 famous (and famously ambiguous) "proviso" -- the proposition that a person may legitimately acquire property rights by mixing his labor withresources held "in common" only if, after the acquisition, "there is enough and as good left incommon 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, inany event, it is entailed by "an adequate theory of justice") is that the acquisition of propertythrough labor is legitimate if and only if other persons do not suffer thereby any net harm. "Net

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harm" for these purposes would include such injuries as being left poorer than they would have been under a regime that did not permit the acquisition of property through labor (something Nozick concedes would be difficult to ascertain) or a meaningful constriction of the set ofresources available for their use -- but would not include a diminution in their opportunities toacquire property (through labor) for themselves.

Construed in this fashion, the Lockean proviso is not violated, Nozick argues, by the assignmentof a patent right to an inventor because, although other persons' access to the invention isundoubtedly limited by the issuance of the patent, the invention would not have existed at allwithout the efforts of the inventor -- and (although Nozick is not entirely clear on this point) theinventor would not have invented the invention and made it public had he not been lured by the prospect of a patent. Consumers, in other words, are helped, not hurt, by the grant of the patent. Nozick contends, however, that fidelity to Locke's theory would mandate two limitations on theinventor's entitlements. First, persons who subsequently invented the same device independently(i.e., without any knowledge of the first inventor's discovery) must be permitted to make and sellit; 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 takensomeone else to invent the same device had knowledge of the invention not disabled them frominventing it independently. (Although Nozick may not have been aware of it, implementation ofthe 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 ontheir own.)

B. Intellectual Property and "Personhood"

The most fully developed essay in this family is Justin Hughes tightly argued study: "ThePhilosophy of Intellectual Property." Hughes introduces his argument as follows:

The most powerful alternative to a Lockean model of property is a personality justification. Such a justification posits that property provides a unique or especiallysuitable mechanism for self-actualization, for personal expression, and for dignity andrecognition as an individual person. Professor Margaret Radin describes this as the"personhood perspective" and identifies as its central tenet the proposition that, "toachieve proper self-development -- to be a person -- an individual needs some controlover resources in the external environment." According to this personality theory, thekind of control needed is best fulfilled by the set of rights we call property rights.

After a careful explication of Hegel's reflections on the relationship between personality and property rights in general and intellectual property in particular, Hughes considers how Hegel'sargument might be brought to bear on specific features of the contemporary law of copyright, patent, and publicity rights. One of the things that makes the argument both tricky and potentially powerful, Hughes contends, is that different kinds of intellectual products seem toembody to radically varying degress the personalities of their creators. Somehow, the law oughtto take those variations into account.

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One of the problems with the labor theory . . . is that some intellectual products have noapparent social value or require no labor to produce, leaving these pieces of propertyunjustified by the labor theory. The personality justification has the same problem withthose intellectual products that appear to reflect little or no personality from theircreators. As with the labor theory, we can overcome this difficulty with a utilitarian

principle that justifies property rights on the grounds that they protect the "net gain" of personality achieved by the entire system. This avoids the question of whether or not personality is present in every case of intellectual property. Yet the personality justification has this same "coverage" problem at a "categorical" level. With acontroversial exception mentioned below, there seem to be no categories of intellectual property that are especially more or less hospitable to the labor theory. This is not truewith the personality justification. Some categories of intellectual property seem to bereceptacles for personality; others seem as if they do not manifest any "personality" oftheir creators.

Poems, stories, novels, and musical works are clearly receptacles for personality. The

same can be said for sculpture, paintings, and prints. Justice Holmes aptly characterizedsuch works as "the personal reaction of an individual upon nature." Another receptaclefor personality is the legal concept of an individual's "persona." The "persona" is anindividual's public image, including his physical features, mannerisms, and history. In theU.S., it is debated whether or not the personal should be considered intellectual propertyat all. The answer to this question may turn on what justification we use for intellectual property.

The persona is the one type of potential intellectual property which is generally thoughtof as not being a result of labor. Even if the persona is considered to be a product oflabor, people would work on their personas without any property rights being necessaryto motivate them. Therefore, the instrumental labor justification is not necessary. Incontrast, the persona is the ideal property for the personality justification. Nointermediary concepts such as "expression" or "manifestation" are needed: the persona isthe reaction of society and a personality. Property rights in the persona give theindividual the economic value derived most directly from one's personality. As long as anindividual identifies with his personal image, he will have a personality stake in thatimage.

The problems for the personality justification do not arise in justifying these obviousexpressions or manifestations of personality, but with those kinds of intellectual propertythat do not seem to be the personal reaction of an individual upon nature. Even in thefield of copyright these problems arise. While most of the personality-laden categoriesare protected by copyrights, copyrights protect more than just personality-rich objects.Atlases and maps are a good example. In the early days of oceanic explorations,mapmakers competed with one another on their claims of accuracy. Today, the samecompetition does not arise because the generic information is already there in the form ofold maps and publicly held government materials. The result is that maps have atremendous uniformity. There may be personality galore in a map of Tolkien's MiddleEarth, but not much in a roadmap of Ohio. That does not mean maps are absolutely



devoid of personality. Certainly a new form of map manifests personal creativity, as inthe case of Peter Arno's revisions of the Mercator projections. Even in everyday maps,there can be artistic content or social commentary in the choices of color, identifyingsymbols, and information included.

More difficult problems for the personality justification are posed by copyrightablecomputer software and other technological categories of intellectual property: patents,microchip masks, and engineering trade secrets. These items usually embody stronglyutilitarian solutions to very specific needs. We tend not to think of them as manifestingthe personality of an individual, but rather as manifesting a raw, almost generic insight.In inventing the light bulb, Edison searched for the filament material that would burn thelongest, not a filament that would reflect his personality. Marconi chose to use a particular wavelength for his radio because that wavelength could travel much fartherthan waves slightly longer, not because that wavelength was his preferred form ofexpression.

In a report related to the recently enacted microchip mask protection law, the HouseJudiciary Committee discussed attempts by some microchip inventors to protect chipdesigns by copyrighting photographs of the chips' layout as artistic designs. This clearattempt to use a system designed to protect personality-rich art for the protection ofengineering designs exudes irony. The House Committee concluded, as most of us do,that engineering designs are characterless and without personality. As congressmen orconsumers, we generally think that state of the art is not art.

Yet technology may not be categorically different from atlases and maps. The primarygoal of computer programs is to produce a particular result using as little software andhardware as possible. But writing programs, like creating logical proofs, can involve acertain aesthetic vision. Within the constraints of efficiency, it is frequently possible towrite a program a number of ways -- some simpler, some more byzantine; each depicts a particular style for resolving the problem. If there are ten ways to write a program ofroughly the same efficiency, it seems perfectly reasonable to think that the choice amongthe ten may demonstrate personality.

It is an oversimplification to think that some genres of intellectual property cannot carry personality. This oversimplification avoids the true issue of the constraints of economy,efficiency, and physical environment which limit the range of personal expression. Suchconstraints exist to some degree in every genre. Few movies or plays can afford to ignorethe average attention span of audiences or the limits of a budget; the artist in the plasticarts is constrained by the physical properties of the materials; the architect faces thesematerial constraints with the additional limits of plot size, location, and zoningregulations. The computer programmer and the cartographer are further along thespectrum of constraint, but even they can embellish their works to suit at least some oftheir own predilections. The genetic researcher or the aerospace engineer are even moreconstrained; their slightest embellishments may be dangerous indeed.The more a creative process is subject to external constraints, the less apparent personality is in the creation. At some point, these constraints on a particular form of



intellectual property may be too great to permit meaningful expressions of personality.We may determine that the personality justification should apply only to some genres ofintellectual property or that the personality generally present in a particular genrewarrants only limited protection.

In the ideal situation, before we made such a determination we would ask the creatorwhat personality she sees in her creation. As mere consumers we may think a genre ofintellectual property too constrained to permit expressions of personality, while themajority of creators in that genre may think that their works do express personality.Subtle manifestations of personality may be visible only to people knowledgeable in thatfield. n230 Just as chess players can recognize particular moves as reflecting the personality of certain players, particular moves in a computer program or a chemical process may be characteristic of a particular inventor or group.

This subjective inquiry approaches personality stake as being a question of whether ornot there is personality in the object. In other words, does the object show others an

aspect of the creator's self? This aspect of the personality-property connection focuses onthe expression of the creator's will through the medium of her creation. The creation itselfis merely a conduit for the expression of personality. Another type of personality stakemay exist, however.A person may claim property so that others will identify him with the property. In thiscase, the creator claims his property in order to create (rather than express) a particular persona. This "externalization" accords with Hegel's theory. Hegel argues thatrecognizing an individual's property rights is an act of recognizing the individual as a person. That same reasoning applies to the externalization connection: if X owns a patent, people will recognize him as a particular person -- the inventor of a unique innovation.

There is a problem, however, with founding intellectual property rights upon suchexternalization. X can't just say "I want people to identify me with the World TradeCenter" and expect this to justify his property claim to it. The individual must have someinternal connection to the claimed property. This connection need not be that the object"expresses" the owner's personality. It may be simply that the owner identifies himselfwith the object. With inventions, the object may precede the personality stake, but withtime the scientist or engineer comes to identify himself with his scientific ortechnological advances. Doppler became identified with certain principles of sound,Edison with the light bulb and gramophone, Bell with his telephone. The personalityinquiry cannot just examine the object. The relationship between object and creator iswhere personality is visible.

Finally, Hughes turns his attention to the notoriously difficult topic of freedom of alienation.How many of the rights enjoyed by the creator of an intellectual artifact should he or she beallowed to give or sell to others? Margaret Radin has devoted an entire book to this topic.Hughes again relies on Hegel for a qualified guideline: Authors and inventors should be permitted to alienate copies of their works (thereby enabling them to earn respect, honor,admiration, and money from the public) but should not be permitted to surrender certain of their






entitlements to their creations (most importantly, their right to prevent others from mutilating ormisattributing their works).

III. Complexities and Problems

The foregoing accounts, we hope, are provocative and suggestive. Before you lean heavily onthem, however, you must in some way come to terms with various objections that have been -- orcould be -- deployed against each. We present them here, not for the purpose for discouragingyou from seeking guidance from analyses of these sorts, but rather in hopes of prompting you totake the philosophic enterprise seriously.

A. Labor-Desert Theory

The most serious of the difficulties that confront devotees of Locke's argument is that it is not

altogether clear that the argument supports any sort of intellectual-property law. The source ofthe problem is ambiguity in Locke's original rationale for property rights. Why exactly shouldlabor upon a resource held "in common" entitle the laborer to a property right in the resourceitself? Scattered in Chapter 5 of Locke's The Second Treatise can be found six related butdistinguishable 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.

2. Religious obligation reinforces the foregoing proposition. God did not merely give theEarth to man in common, but "commanded" him to "subdue" it -- i.e., "improve it for the

benefit of Life" -- which man can do only by both laboring upon it and appropriating thefruits of that labor.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 hisHands." It seems only natural that whatever he mixes that Labour with should belong tohim as well.

4. The moral value of work reinforces the foregoing insight. God gave the World to "theIndustrious 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 thatwhich they labor upon.

5. A sense of proportionality and fairness also figures in the inquiry. Most of the value ofthings useful to men derives not from the value of the raw materials from which they aremade, but from the labour expended on them. It is thus not "so Strange" that, whendetermining whether ownership should be assigned to the worker or the community, theindividual "Property of labour should be able to over-balance the Community of Land."

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 fromwild 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 theworker.

Whether Locke's theory provides support for intellectual property depends upon which of thesevarious 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 ofintellectual property. After all, most authors and inventors work hard, and their intellectual labortypically is a far more important contributor to the total value of their creations than the rawmaterials they have employed. On the other hand, if arguments 1 and 2 are stressed, the case forintellectual-property rights is far weaker. As SeannaShiffrin has shown, crucial to those twoarguments is the proposition that certain articles essential to life (such as food) cannot be enjoyedin common; "their use must, of necessity, be exclusive." But intellectual products plainly are notlike that. Not only is access to them typically not necessary for survival, but they can be used byan 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

indeterminate. It depends on which aspects of Locke's original theory is dominant. Locke did notsay, and we have no way of knowing. Assume, however, that we somehow surmount barricadeidentified by Shiffrin and conclude that intellectual labor does give rise to a natural entitlementto 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 "intellectuallabor"? 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 is probably closest to Locke's original intent, but he was not focusing onintellectual labor. Justin Hughes has shown that serious arguments can be made in support of the both the second and the third. And Gary Becker reminds us how important the fourth is to ourimages of deserving authors and inventors. No grounds on which we might select one or anotherare 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-propertyright, that the discovery in question satisfy a meaningful "utility" requirement; the other threewould not. The second would counsel against conferring legal rights on artists who love theirwork; the other three point in the opposite direction. The fourth would suggest that we add tocopyright law a requirement analogous to the patent doctrine of "nonobviousness"; the otherswould not. In short, a lawmaker's inability to choose among the four thus will often be disabling.

Similar troubles arise when one tries to apply Locke's conception of "the commons" to the fieldof 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 leastseven possibilities come to mind:

(a) the universe of "facts"; (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 known to someone but not owned by anyone;(e) the set of ideas currently known to someone;(f) the set of all "reachable" ideas -- i.e., all ideas that lie within the grasp of people today;(g) the set of all "possible ideas" -- i.e., all ideas that someone might think of.

When applying the Lockean argument to intellectual property, it will often make a differencewhich of these options one selects. For example, option (c) is difficult to reconcile withcontemporary 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 lawis 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" (onlydistinctive ways of "expressing" them) meshes comfortably with either. As Justin Hughes hasshown, the Lockean "sufficiency" proviso can be satisfied fairly easily if one chooses option (f) -- on the theory that the deployment of most ideas enable other people to "reach" an even largerset of ideas and thus enlarges rather than subtracts from the commons. By contrast, if one adoptsoption (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 isthe correct approach? Who knows?

Suppose we arbitrarily select one interpretation -- say, option (d). Trying to fit it into theLockean analytic quickly gives rise to three additional, related problems. First, the act of mixinglabor with a piece of the commons does not, under any of the various extant intellectual-propertyregimes, work the way Locke supposed real-property law works. When one mixes one's physicallabor with a plot of virgin land, one should acquire, Locke suggested, a natural right not merelyto the wheat one produces but to the land itself. By contrast, when one mixes one's intellectuallabor 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 entitlementsone acquires do not have the kind of exclusivity Locke apparently attributed to real-propertyrights. For example, the issuance of a patent on a better mousetrap prevents others from makingthat mousetrap, but not from reading the patent and using the information contained therein tomake a even better ("nonequivalent") mousetrap. The issuance of a copyright on a novel preventsothers from copying it but not from reading it, discussing it, parodying it, etc. (Closely examined,real-property rights also lack the exclusivity Locke attributed to them, but the difficulty is moreapparent in the case of property in ideas.) Finally, Locke suggested that the property rights oneacquires through labor upon resources held in common do and should last forever -- i.e., arealienable, devisable, and inheritable indefinitely. Most intellectual-property rights, by contrast,sooner or later expire.



One might respond: but none of these observations indicate that the application of labor-deserttheory to intellectual property is indeterminate; they indicate merely that intellectual-propertylaw would have to be radically revised to conform to the Lockean scheme. Perhaps. But the scaleof 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 essayon intellectual property)? If not, then what set of more limited entitlements would satisfy theobligation of the state to "determine" and "settle" natural property rights? Locke's argumentcontains few clues.

We have not exhausted, unfortunately, the difficulties associated with the "sufficiency" proviso. Some of the commentators who have sought to harness Locke's argument to intellectual propertyhave seen little difficulty in the requirement that a laborer leave "as much and as good" forothers. Justin Hughes, for example, emphasizes the myriad ways in which the expansion of theset of available ideas stimulated by intellectual property improves the lot of everyone -- either

immediately or soon. Robert Nozick, as suggested above, sees the sufficiency proviso assomewhat more constraining, but has identified to his satisfaction a way of structuring patent lawthat avoids violating it. Wendy Gordon, by contrast, construes the proviso as a much moreserious limitation on the scope of intellectual-property rights. Conferring monopoly privileges onthe creators of intellectual products, she claims, can hurt more than help the public. Take theword "Olympics," for example. If the term did not exist, we would have contrived other ways tocommunicate the notion of periodic amateur international sports competitions untainted byideology or warfare. But because the word does exist, we have become dependent on it. No otherword -- or collection of words -- quite captures the idea. Consequently, if we now prohibit"unauthorized" uses of the word -- e.g., in connection with the "Gay Olympics" or on a T-shirthighlighting the hypocritical way in which the ideal has been applied in recent years -- we haveleft the public worse off than if the word never existed. Fidelity to the Lockean proviso (and to amore general "no-harm" principle that runs through Locke's work), Gordon insists, requires thatwe withhold property rights in situations such as these. Once again, a wide range ofinterpretations of an important component of Locke's theory are available, and no one member ofthe set seems plainly superior to the others.

We come, finally, to the well-known problem of proportionality. Nozick asks: if I pour my canof tomato juice into the ocean, do I own the ocean? Analogous questions abound in the field ofintellectual property. If I invent a drug that prevents impotence, do I deserve to collect (for 20years) the extraordinary amount of money that men throughout the world would pay for access tothe drug? If I write a novel about a war between two space empires, may I legitimately demandcompensation 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 mydialogue? How far, in short, do my rights go? Locke give us little guidance.

B. Personality Theory

Private property rights, argue 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 isidentification of the specific needs or interests one wishes to promote. As Jeremy Waldron hasargued, a wide variety of interests might be deemed fundamental, each of which arguably could be advanced by a system of property rights:

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 fromawareness that one's actions, one's use of the commons, disadvantages countless other people.

2. Privacy. Property rights may be necessary to provide persons "refuge[s] from the generalsociety of mankind" -- places where they can either be alone or enjoy intimacy withothers.

3. Self-Reliance. An exclusive right to control certain resources may be thought necessary toenable persons to become independent, self-directing.

4. Self-Realization as a Social Being . The freedom to own and thus trade things may benecessary to enable persons to help shape their social environments and establish their

places in communities.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.

6. Security and leisure. Control over a certain amount of resources may be necessary to freea person from obsession with obtaining the means of survival, the "impulsion of desire,"and thus to enable them to attend to higher pursuits.

7. Responsibility. Virtues like "prudence," self-direction, and foresight may be cultivated bythe opportunity and obligation to manage one's own resources.

8. Identity. Selfhood may be thought to depend upon the ability to project a continuing life plan into the future, which is turn is fostered by connection to and responsibility for property.

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.

10. Benevolence. Property rights may be thought essential to enable a person to express ideasof what is beautiful or to enact benevolent wishes.

Six of these ten arguments -- 1, 3, 4, 6, 7, 9 -- provide, at most, weak support for a system ofintellectual-property rights. To the extent that intellectual-property rights have economic valueand may be bought and sold, gained and lost, they may contribute to their owners' abilities toavoid guilt, become autonomous, engage in independent political action, etc. But those valuescould be promoted equally well by providing persons property interests in land or shares in private corporations. Nothing turns on the fact that the entitlements pertain to intellectual products.

Personhood-based justifications for 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 thosesources answers to specific questions have come to widely divergent conclusions. Someexamples:



When an author has revealed her work to the world, does it nevertheless continue to fall withinthe zone of her "personhood" -- so that she may legitimately claim a right to restrict its furthercommunication? 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.

Assume the answer is to the previous question is yes. May the author alienate his right to controlthe copying of his work? Kant, reasoning that "an author's interest in deciding how and when tospeak [is] an inalienable part of his personality," thought no; Hegel, reasoning that expressions ofmental aptitudes (as opposed to the aptitudes themselves) were "external to the author andtherefore freely alienable," thought yes.

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 no -- on the ground that the copywould be "essentially a product of the copyist's own mental and technical ability." Justin Hughes

seems to take the opposite position.

Is the protection of trade secrets necessary to protect privacy interests? Edwin Hettinger thinksno -- 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, arguing that theright to privacy includes the freedom to reveal information to a limited circle of friends orassociates without fear that it will be exposed to the world -- a freedom that trade-secret lawshields.

Is a celebrity's persona a sufficiently important repository of selfhood that other persons oughtnot 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 willhave a personality stake in that image." Michael Madow, insisting that the "creative (andautonomous) role of the media and the audience in the meaning-making process" are at least asimportant as the "personality" of the celebrity, sharply disagrees.

Two related problems underlie these and many other disagreements among personality theorists.First, the conception of the self -- the image of "personhood" that, through adjustments ofintellectual-property doctrine, we are trying to nurture or protect -- is too abstract and thin to provide answers to many specific questions. Either a more fully articulated vision of humannature (that would forthrightly address such grand questions as the importance of creativity to thesoul) or a conception of personhood tied more tightly to a particular culture and time seemnecessary 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 calls the problem of fetishism. Which of the many tastes exhibited by current members of Americanculture should be indulged, and which should not? The quest forindividuality?Nationalism?Nostalgia for a real or imagined ethnic or racial identity?The hopethat audiences will treat one's creations with respect?The hunger for fifteen minutes (or more) offame? 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 disputesshould be resolved.

IV. The Exercise

Return, now, to the case of The Rock and Roll Hall of Fame -- with which we began. Have yourviews on who should prevail in each of the three related disputes been altered at all by theforegoing discussion?

Here is how current American law would handle each dispute:

(a) The construction of a Rhythm & Blues Hall of Fame identical in shape to The Rock and RollHall of Fame would violate the copyright in the original building. (The question of who ownsthat copyright -- the architect or the museum -- would turn in part on the content of the contract

under which the architectural work was done.) Before 1990, architectural works were notshielded by copyright law. Architectural plans were protected, but only in the narrow sense thatthey could not be copied without permission. If a builder lawfully obtained a set of blueprints fora building (or determined how to build it without blueprints), he was free to build an identicalstructure.A 1990 federal statute (prodded by the American ratification of the Berne Convention)extended copyright protection to "the design of a building as embodied in any tangible mediumof expression" and made clear that the building itself constituted such a "medium of expression."The upshot is that, as long as a building contains original design elements that are notfunctionally required, its "overall shape" may not be imitated without permission. Admirers may photograph, draw, or paint the building (as long as it is "visible from a public place") but cannot build an identical structure or even (it seems) a scale model of it.

(b) The dispute between the Museum and Gentile is real. The Museum did not (and could not)rely upon copyright law, because section 120 of the statute mentioned in section (a), above,excuses "the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located inor ordinarily visible from a public place." Trademark law, however, provided an alternative lineof attack. The District Court found the Museum's claim persuasive and granted a preliminaryinjunction against continued sales of Gentile's poster, reasoning that the building designfunctioned as an indicator of the Musuem's product (i.e., as a trademark) and that Gentile's posterwas crafted in way that would likely (i) mislead consumers into thinking that it was either produced or sponsored by the Museum or (ii) "dilute" the power of the Musuem's mark. Adivided panel of the Sixth Circuit reversed. The opinion of the court [from which the quotationsin the original "exercise" were taken] -- including the dissenting opinion of Chief Judge Martin --are well worth reading. (The case is not over yet, and many organizations are watching closelyits evolution.)

(c) The outcome of the dispute between the Museum and Acme is harder to predict. It is notclear, to begin with, that the safe haven for pictures, paintings, photographs, or other pictorialrepresentations of the work , mentioned in section (b), above, would extend to three-dimensional

http://cyber.law.harvard.edu/bridge/Philosophy/Architect.htm





http://cyber.law.harvard.edu/bridge/Philosophy/1998rock.htm






http://cyber.law.harvard.edu/bridge/Philosophy/murray.htm



















models. If not, then Acme would be in trouble on copyright grounds. In addition, the Museummight well have a stronger trademark claim against Acme than against Gentile. That seems to bethe view of the New York Stock Exchange, which (as Felix Kent explains) recently brought atrademark case against "the New York, New York Hotel and Casino (of Las Vegas) for buildinga one-third scale model of the Exchange's facade on the gambling floor."

The hotel and casino is a melange of copies of famous buildings in New York, capped bya copy of the Statue of Liberty that makes her look like a showgirl. The NYSE complainsthat, among other things, the public will be deceived and confused as to source, that the building constitutes a false designation and that the NYSE's trademarks will betarnished."

The case -- New York Stock Exchange v. New York, New York Hotel and Casino No. 9

http://cyber.law.harvard.edu/bridge/Philosophy/ipphil.htm

http://cyber.law.harvard.edu/bridge/Philosophy/Kent.htm









Economic Analysis of Intellectual Property

The term "intellectual property" refers to a loose cluster of legal doctrines that regulate the usesof different sorts of information. The law of copyright protects "original forms of expression" --novels, movies, musical compositions, computer software, etc. Patent law protects inventions --machines, processes, (also) computer software, etc. Trademark law protects words and symbolsthat identify for consumers specific goods and services -- brands of cereal, clothing, automobiles,etc. Trade-secret law protects information that companies have tried but failed to conceal fromtheir competitors -- soft-drink formulas, confidential marketing strategies, etc. The "right of publicity" protects celebrities' interests in their images and identities.

In recent years, a growing number of legal theorists have attempted either to make sense of thiscomplex field or to propose ways in which it should be reformed. Most of these efforts havetaken one of four forms:

Some theorists begin with the postulate that a person who labors upon resources that areeither unowned or "held in common" has a natural property right to the fruits of his or herefforts - 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 applicableto 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 (intellectual) labor seems tocontribute so importantly to the value of the finished product.

Others draw inspiration from the work of the Kant and Hegel, from which they derive the propositions (i) that private property rights are crucial to the satisfaction of somefundamental human needs or interests and (ii) that policymakers should thus strive toselect the set of entitlements that most conduces to human flourishing. From thesestandpoints, intellectual property rights may be justified either on the ground that theyshield from appropriation or modification artifacts through which authors and artists haveexpressed their "wills" or on the ground that they create social and economic conditionsconducive to creative intellectual activity, which in turn is important to humanflourishing.

A third group takes the view that property rights in general -- and intellectual-propertyrights in particular -- can and should be shaped so as to help foster the achievement of a

just and attractive culture. Scholars who work this vein typically draw inspiration from aneclectic cluster of political and legal theorists, including Jefferson, the early Marx, theLegal Realists, and the various proponents (ancient and modern) of classicalrepublicanism.

The premise of the last -- and most popular -- of the approaches is the familiar utilitarianguideline that a lawmaker's beacon when shaping property rights should be the greatestgood of the greatest number. In other words, he should strive to select a set ofentitlements that (a) induces people to behave in ways that increase socially valuable



goods and services and (b) distributes those goods and services in the fashion thatmaximizes the net pleasures people reap from them.

The first and second of these approaches draw self-consciously upon well defined traditions in political and moral philosophy. Accordingly, they are discussed in a separate essay on

"Philosophic Perspectives on Intellectual Property." The fourth of the approaches fallscomfortably within the capacious family of arguments we have described as "economic analysisof law." Set forth below are brief discussions of its central claims and the problems its proponents have encountered. If you are curious concerning the origins of these various theoriesor the ways in which they have figured in recent judicial decisions, you may wish to consult thelarger essay from which these materials have been adapted: "Theories of Intellectual Property." (###)

I. Varieties of Economic Analysis

The large majority of the writers who have attempted economic analyses of intellectual propertyhave relied, explicitly or implicitly, on the "Kaldor-Hicks" criterion (also known as the "wealth-maximization" criterion or "potential pareto superiority") which counsels lawmakers to select asystem of rules that maximizes aggregate welfare measured by consumers' ability andwillingness to pay for goods and services. They disagree sharply, however, concerning theimplications of that criterion in this field. Three quite different arguments -- commonly thoughtto be incompatible -- dominate the literature.

1. Incentive Theory. The first and most common of the three tacks argues that the optimaldoctrine is the one that maximizes the difference between (a) the present discounted value to

consumers of the intellectual products whose creation is induced by holding out to authors andinventors the carrot of monopoly power and (b) the aggregate losses generated by such a systemof incentives (the consumer surplus sacrificed when authors and inventors price their creationsabove the marginal costs of producing them, the "administrative costs" of interpreting andenforcing intellectual-property rights, etc.) In rougher terms, incentive theory urges a lawmakerto establish or increase intellectual-property protection when doing so would help consumers bystimulating creativity more than it would hurt them by constricting their access to intellectual products or raising their taxes.Here are two illustrations of this general approach, both from the

pens of William Landes and Richard Posner:

In an influential essay on copyright law, they argue that the distinctive characteristics of

most intellectual products are that they are easily replicated and that enjoyment of them by one person does not prevent enjoyment of them by other persons. Thosecharacteristics create a danger that the creators of such products will be unable to recouptheir "costs of expression" (the time and effort devoted to writing or composing; the costsof negotiating with publishers or record companies, etc.), because they will be undercut by copyists who bear only the low "costs of production" (the costs of printing, binding,and distributing books; the costs of "burning" and packaging compact disks, etc.) andthus can offer consumers identical products at very low prices. Awareness of that danger










will deter creators from making socially valuable intellectual products in the firstinstance. How might we avoid this economically inefficient outcome? By allocating tothe creators (for limited times) the exclusive right to make copies of their creations,thereby enabling them to charge consumers monopoly prices. All of the variousalternative 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 -- usedto shape specific doctrines within the field.

A related argument dominates the same authors' study of trademark law. The primaryeconomic 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 toread 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 thefuture) and (2) the creation of an incentive for businesses to produce consistently highquality goods and services (because they know that their competitors cannot, by imitatingtheir 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 ancillarysocial benefit: they improve the quality of our language -- by increasing our stock ofnouns (and thus economizing on communication costs); by creating new, useful, genericwords (e.g., "aspirin" and "brassiere"); and by "creating words or phrases that peoplevalue for their intrinsic pleasingness as well as their information value." To be sure,trademarks can sometimes be socially harmful -- for example by enabling the first entrantinto a market to discourage competition by appropriating for itself an especially attractiveor informative brand name. Awareness of these benefits and harms should (and usuallydoes), 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 notwhen they are, on balance, deleterious. The general principle that underlies these variousarguments is that maximization of net social welfare should be lawmakers' exclusiveobjective when shaping intellectual-property law.

2. Optimizing Patterns of Productivity. Many years ago, Harold Demsetz argued that thecopyright and patent systems play the important roles of letting potential producers ofintellectual products know what consumers want and thus channelling productive efforts indirections most likely to enhance consumer welfare. In the past decade, a growing group oftheorists have 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 peoplederive enjoyment and value from literary and artistic works. To stop short of these endswould deprive producers of the signals of consumer preference that trigger and directtheir investments.

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 handsof people who want them (and are able to pay for them). Only in the rare situations in whichtransaction 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 (likethe fair-use doctrine) or through a compulsory licensing system.

3. Reducing Rent-Dissipation. The final approach is related to but differentiable from the second.Its objective is to eliminate or reduce the tendency of intellectual-property rights — and patent

rights in particular — to foster duplicative or uncoordinated inventive activity. Economic waste ofthis sort can occur at three stages in the inventive process. First, the pot of gold represented by a patent on a pioneering, commercially valuable invention may lure an inefficiently large numberof 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 asimilar scramble for similar reasons at the "secondary" level. Finally, firms may try to "inventaround" technologies patented by their rivals -- i.e., to develop functionally equivalent but non-infringing technologies -- efforts that, although rational from the standpoint of the individualfirm, represent a waste of society's resources. In recent years, several economists have devotedthemselves to identifying 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.

II. Problems

Serious difficulties attend efforts to extract from any one of these approaches answers to concretedoctrinal problems. With respect to incentive theory, the primary problem is lack of theinformation necessary to apply the analytic. To what extent is the production of specific sorts ofintellectual products dependent upon maintenance of copyright or patent protection? Withrespect to some fields, some commentators have answered: very little; other monetary ornonmonetary rewards (profits attributable to lead time, prestige, tenure, the love of art, etc.)would be sufficient to sustain current levels of production even in the absence of intellectual- property protection. Other commentators sharply disagree. The truth is that we don't have enough

information to know who is right -- and are unlikely ever to acquire sufficient information. Evenif we were able to surmount this enormous hurdle -- and concluded that society would be betteroff, on balance, by supplying authors and inventors some sort of special reward -- major sourcesof indeterminacy would remain. Is an intellectual-property system the best way of providing thatreward or would it be better (as Steven Shavell and Tanguy van Ypersele have recently argued)for a government agency to estimate the social value of each innovation and pay the innovatorsthat sum out of tax revenues? If the former, how far should creators' entitlements extend? Shouldthey include the right to prepare "derivative works"? To block "experimental uses" of theirtechnologies?To suppress their inventions? Determining which set of rights would be optimal

well beyond our power.

Theorists who seek to optimize patterns of productivity confront less severe information problems. To be sure, they are obliged to make difficult judgments -- often with thin data -- onsuch questions as whether the failure of creators to license certain uses of their works resultsfrom the fact that such uses are worth less to consumers than preventing them is worth tocreators (in which case, the absence of licenses is socially desirable) or from excessively hightransaction costs (in which case, the creators should be compelled to grant licenses -- for free orfor a governmentally determined fee). But inquiries of this sort are not as frighteningly complexas 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 whichwe 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 ofentitlements. Only thereby will potential producers be provided refined signals concerning howconsumers 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. Inmany fields unrelated to intellectual property, innovators are not empowered to collect the fullsocial value of their innovations. The elementary schoolteacher who develops a new techniquefor 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 theentitlements of intellectual-property owners thus may refine the signals sent to the creators ofdifferent sorts of fiction, movies, and software concerning consumers' preferences, but wouldlead to even more serious over investment in intellectual products as opposed to such things aseducation, community activism, and primary research. Unfortunately, Lunney's proposedresponse to this problem -- reducing copyright protection until the creators of entertainment

receive rewards no greater than the returns available to innovators in other fields -- wouldsacrifice most of the economic benefits highlighted by Demsetz and Goldstein. The optimalsolution is thus far from clear.

Theorists bent on reducing rent dissipation have problems of their own. The most seriousdifficulty arises from the fact that reducing social waste at one stage of the inventive processcommonly increases it at another. Thus, for example, Edmund Kitch has advocated granting tothe developer of a pioneering invention an expansive set of entitlements, partly in order to enablehim or her to coordinate research and development dedicated to improving the invention, thusreducing rent dissipation at the secondary level. However, as Robert Merges argues, grantinggenerous 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 thefirst to develop pioneering patents. Mark Grady and Jay Alexander have developed an ingenioustheory for determining which of these dangers is more salient in particular cases. Primaryinventions that have only modest social value but that "signal" a large potential for improvementare 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 -- i.e., a patent of the sort commended byKitch. 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 primarylevel. Finally (and most suprisingly), elegant inventions (i.e., socially valuable inventions so wellconceived they cannot be improved upon) should be given no patents whatsoever, therebydiscouraging rent dissipation at both levels. This typology, though intriguing, has many defects, both practical and theoretical. To begin with, applying it is likely to be harder than Grady andAlexander think; "how can we know when an invention signals the possibilities of improvementsand when it [does] not"? Next, what are we to do with cases in which the invention at issue is ofa 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 secondarylevel)? Finally, Robert Merges and Richard Nelson argue with considerable force that efforts,through broad patent grants, to mitigate rent dissipation at the secondary level may have seriouseconomic side effects. Instead of enabling the original inventor to coordinate efficiently the



INTELLECTUAL PROPERTY: GENERAL

THEORIES

Peter S. Menell

Professor of Law and Co-Director

Berkeley Center for Law and TechnologyUniversity of California at Berkeley

Copyright 1999 Peter S. Menell

6. Natural Rights/Labor Theory

John Locke offered a strong natural rights justification for private property

which remains a central pillar of property theory today (Locke, 1698; Dwyer

andMenell, 1997). Beginning with the proposition that all humans possess

property in their own ?person?, Locke argued that

[t]he ?labour? of his body and the ?work? of his hands, we may say, are

properly

his. Whatsoever, then, he removes out of the stat that Nature hath provided

and

left it in, he hath mixed his labor with it and joined to it something tht is

his own

and thereby makes it his property. It being by him removed from the common

state Nature placed it in, it hath by this labour something annexed to it

that

excludes the common right of other men. For this ?labour? being the

unquestionable property of the labourer, no man but he can have a right to

what

that is once joined to, at least where there is enough and as good left in

common

for others.

For elaboration of Locke?s general theory, see Simmons (1992) and Waldron

(1979).

Immanuel Kant (1798, pp. 229-230) spoke of the ?natural obligation? to

respect the author?s ownership of his works. Sterk (1996), Hughes (1988)and Yen (1990) present thorough accounts of the role of natural rights in

American copyright law.Oddi (1996) discusses the application of natural

law theories to patent protection. Hughes (1988) and Port (1994) explore the

application of Lockean theory to trademark protection. Becker (1993)

explores various moral bases for deserving to own intellectual property. In a

series of articles, Gordon (1989, 1992a, 1992b, 1993) applies the Lockean

perspective, with particular consideration of the Lockean ?proviso? (?enough

and as good left in common for others?), in arguing against the view that

158 Intellectual Property: General Theories 1600

intellectual property rights should be absolute (see Waldron, 1993). Denicola

(1981) and Ginsburg (1990) argue that copyright law should be interpreted

broadly to allow protection for compilation of facts, even if they do entail

original expression in their organization, so as to protect the ?sweat of the

brow? inherent in creating such works (see also Ginsburg, 1992). Harris

(1996) discusses the application of Lockean theory to ownership of body

parts and products (for example, cell lines). Hettinger (1989) critiques the

Lockean labor theory as applied to intellectual property, arguing that

creators should be limited in their property interest to the value they add

by

applying their labor to things removed from the commons and not to the

total value of the resulting product (see also Nozick, 1984, pp. 175-182).



8. Personhood Theory

The personhood justification for property derives from Kant?s Philosophy of

Law and Hegel?s Philosophy of Right and has been elaborated in modern

legal discourse in the work of Radin (1982, 1993). ?The premise underlying

the personhood perspective is that to achieve proper development - to be a

person - an individual needs some control over resources in the external

environment. The necessary assurances of control take the form of property

rights? (Radin, 1982). The personhood justification for property emphasizes

the extent to which property is personal as opposed to fungible: the

justification is strongest where an object or idea is closely intertwined

with

anindividual?s personal identity and weakest where the ?thing? is valued by

the individual at its market worth. For general critique of this theory, see

Schnably (1993), Simmons (1992).

Netanel (1993) traces the rich heritage of Continental copyright law and

its moral rights tradition to the personality theory developed by Kant and

Hegel, pointing out nuances distinguishing the various strains within the

theory (see also Palmer, 1990, pp. 835-849). For example, Kant viewed

literary work as part of the author?s person and hence is not alienable.

1600 Intellectual Property: General Theories 159

Hegel, by contrast, distinguished between mental ability as an inalienablepart of the self, but not the act of expression. Netanel presents a multi-

faceted argument for alienability restrictions upon copyright interests. The

broader implications of the personhood justification for intellectual

property

have been explored by a number of scholars: Hughes (1988) (suggesting

various strains of the personhood theory in American copyright law); Port

(1994) (disputing Hughes? use of personhood theory to support anti-dilution

actions in trademark); Cherensky (1993) (with regard to works for hire);

Hughes (1998) (right of publicity); Solomon (1987) (right of publicity).

Personhood theory has been particularly central to the emerging debate,

brought to the fore by advances in biotechnology, over property rights in

body parts, cell lines and other body products (Munzer, 1994); Radin, 1987).

philosophic perspectives on intellectual property

Documents