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Intellectual Property

Reynolds has posted a piece on the twisted state of intellectual properly law that touches on areas of both law and political philosophy. I'm not really qualified to comment on the legal side of matters since that's not an area of personal expertise, but the case Reynolds fashions for the notion of intellectual properly law run amok is compelling. It's hard to see how an image of a routine item in a movie, for example, constitutes unique intellectual property! And the concluding sentence succinctly states the problem:

If unchecked, the expansion of intellectual property protections into new and bogus areas is likely to undermine the legitimacy of intellectual property law itself.

But deciding how to "check" intellectual property law is a political matter, and it's in the area of political philosophy that the Reynolds piece raises some interesting questions about the purposes and premises of intellectual property law. For Reynolds, the premise driving intellectual property law seems not to be any notion of an (abstract) natural right to control the use of one's intellectual property, but rather a utilitarian concern for fostering creativity: if intellectual property is protected, creativity is encouraged and society benefits. In three separate instances, Reynolds conveys this notion: In paragraph 9, he writes of the "societal interest in rewarding creativity"; in paragraph 10, he writes that "intellectual property laws are supposed to foster creativity"; and in paragraph 13, he argues that "something has to be done, not only to foster creativity, but also to save intellectual property law itself."

Purely in terms of political philosophy, I wonder about the focus on the benefits of society, versus, say, the right of individuals to control their intellectual property. Reynolds is certainly correct to criticize the expansion of intellectual property law to everyday items that are difficult to conceive of as intellectual property. But the idea of compulsory licensing discussed in paragraph 12 makes me (as one of those abstract "rights" guys) a little nervous. It would seem to legitimize the expanded view of "rights" that is properly singled out for criticism in the piece, while at the same time curtailing individual rights. In some instances, I'm all for individuals exercising a "veto power" over society where their rights are concerned! I don't know that society has a legitimate claim to Rearden Metal, for example, just because it wants the product of Hank Rearden's mind, (Okay, you knew an Ayn Rand reference was coming) and surely there are legitimate examples of contemporary intellectual property where that would hold.

So the concepts of political philosophy underlying intellectual property law matter a great deal. Is the goal only to foster innovation that benefits society? To protect natural rights? Some combination?

Interesting questions raised by an interesting piece.

(02-07-02 Update) Den Beste defends the utilitarian approach to intellectual property. Additionally, I ran across this piece that talks about four distinct philosophical justifications for intellectual property, including utilitarianism, a Lockean-Nozickean (and by extension, Randian) approach, and two others. Whatever one's preferred approach, I think we both (Den Beste and myself) concur on the main point Reynolds makes: that the classification of some seemingly ordinary items as intellectual property is overly restrictive, in some cases stifling. I would also add that I write only as a political philosophy generalist on the topic of IP, and have no expertise whatever in IP law, so my $0.02 is worth ... about that much. :)

[Posted at 20:40 CST on 02/06/02] [Link]

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