Theories of intellectual property: Is it worth the effort?

The author of the Guest Editorial for April is long-time editorial board member Neil Wilkof. JIPLP is pleased to make this editorial freely available via this weblog. Neil's thesis runs like this:

Theories of intellectual property: Is it worth the effort?

Should one care about theories of intellectual property? A decade ago, Professor William Fisher, of Harvard University, made a challenging attempt to answer “yes”, in a book chapter entitled “Theories of Intellectual Property”. While never quite distinguishing between a philosophy, an approach, and a theory of intellectual property, Fisher identifies four analytical constructs, which we will call “theories”, namely—(i) utilitarian for maximizing net social value, (ii) Lockean (one has the right to the fruits of his intellectual labour); (iii) protection of personality in works; and (iv) fostering a just and attractive culture.

The utilitarian theory applies economic constructs to propose how intellectual property rights can achieve the Benthamite ideal of “the greatest good for the greatest number.” Cloaked in the more current notion of “wealth-maximization”, the focus is how to balance the social costs and benefits associated with giving legal effect to IP laws and rules. While the theory has produced various elegant propositions on how to conceive of this balance, it has proved to be devilishly difficult to create robust ways to measure inputs, outputs and process.

The labour theory seeks to apply the seminal rationale of John Locke regarding property rights. Locke asserted that a person enjoys a natural right in the fruits of his labour in transforming raw materials (viewed as including, eg facts and concepts) that are “held in common” into a finished product of enhanced value, and the state has a duty to enforce the natural right that derives from the labour. The principal problem with applying this theory is that it does not self-explain why labour added to a resource “held in common” should entitle one to a property right in such resource; if “yes”, what is meant by “intellectual labour” and “held in common”; and how far should one's rights go in the fruits of his labour (as Robert Nozick observed, “if I pour my can of tomato juice into the ocean, do I own the ocean?”). As a result, seeking to apply the Lockean approach of property must inevitably end in potentially unmanageable analytical uncertainty.

The personality theory is described by Fisher as justifying property rights “when and only when they would promote human flourishing by protecting or fostering fundamental human needs or interests.” Here, as well, indeterminacy reigns: how can we identify the needs or interests to be promoted? Fisher identifies four such needs or interests appropriate for intellectual property: privacy, individual self-realization; identity; and benevolence. However, there is no agreement on how to apply to them. For instance, is protection of trade secrets “necessary” to protect interests of privacy? Some say “yes” (a right of privacy extends to the freedom to disclose to a limited circle of friends without the fear that it will be disclosed to the entire world), while others say “no” (since most trade secrets are owned by corporations, that do not have the “personal features” that privacy is intended to protect).

The final theory has less of an established foundation (“an eclectic cluster of political and legal theorists” from Jefferson to the present). Called “social planning theory”, it differs from utilitarian theory in that it seeks to go beyond the notion of “social welfare” to a much broader vision of society serviced by intellectual property. An example given is Neil Netanel's view of copyright as intending to serve “a robust, participatory, and pluralist civil society,” where “unions, churches, political and social movements, civic and neighborhood associations, schools of thought, and educational institutions” abound. The problem with this theory is that does not, and cannot, achieve agreement on what are the goals that such “social planning” seeks to achieve. As such, it too is inadequate.

When all is said and done, Fisher still resists throwing up his rhetorical hands. If none of these theories can really provide a one-stop shop for conceiving intellectual property, they still are valuable. In Fisher's words, “they can catalyze useful conversations among the various people and institutions responsible for shaping the law”, can “improve conversations between lawmakers and their constituents”, and “through continued conversations, there may lie some hope of addressing the inadequacies of the existing theories.” The reader can decide whether achieving such “conversation” merits the effort of seeking to develop “theories” of intellectual property.