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- Feb 2014
The innate qualities of intellectual pr operty, however, in combination with INTELLECTUAL PROPERTY: POLICY FOR INNOVATION 15 strong economic motivations have led U.S. intellectual property policy to operate according to rights - based, non - utilitarian theory, possibly as a result of lobbying (capture theory).
Lobbying has led to a rights-based non-utilitarian theory copyright policy in the US at the present time (2014).
The U.S. social contract establishes a utilitarian basis for protection of intellectual property rights: protection as a means of encouraging innovation.
The social contract of the US Constitution provides a utilitarian basis for protection of intellectual property rights.
As such, the conclusion is that intellectual property is not ‘property’ in the Lockean sense. If it were, then intellectual property protections would deserve no mo re policy debate than whether police ought to chase thieves. As it is not, the justification for intel lectual property must be sought in the social contract. As noted above, the social contract for the United State s, the Constitution, specifies in Article I, Section 8, Clause 8 that Congress may pass laws “ To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respec t ive Writings and Discoveries.” This background clarifies the discussion considerably : • There is no natural law basis for intellectual property rights • Thus, intellectual property rights must be provided for by the social contract. • The U.S. social contract as elucidated in the Constitution specifies a utilitarian basis for intellectual property rights (“to promote the progress... by securing for limited times...")
There is no natural law basis for intellectual property rights
Intellectual property rights must be provided for by the social contract
The US Constitution as a social contract specifies a utilitarian basis for intellectual property rights.
Fisher points out that the rights - based, non - utilitarian theory is greatly influenced by two concepts: (1) the western ideology of property from Locke (that people are entitled to own the fruits of their labors, and should be rewarded in proportion to their contributions); and (2) the “romantic conception of authorship” of the divinely inspired individual genius or artist (1999, Sect. II. B).
The first is the soul of the rights-based theory
The critical difference comes out in the details, especially the amount of time rights are protected and the scope of rights allowed
This is understatement to be sure, but the debate has been principally between two theories: a utilitarian policy theory, and a rights - based , non - utilitarian property theory (Long, 1995, n.pag.) .
The debate in intellectual property law has centered around utilitarian policy theory and a rights-based non-utilitarian property theory.
This paper establishes cause to suspect that current intellectual property policy overstep s utilitarian justification, and suggests that a clearer distinction should be drawn between the proper role of U.S. law in intellectual property (that which promotes innovation) and moral questions of creator’s rights.
The U . S . Co nstitution firmly grounds the proper role of intellectual property policy as utilitarian .
Identify where/how this ground is established.
Keywords : anticommons, copyright, intellectual property, Lockean Proviso, patent, property rights, state of nature, trademark, utilitarian theory
- utilitarian basis
- rights-based non-utilitarian theory
- US Constitution
- social contract
- economic motivations
- state of nature
- romantic conception of authorship
- utilitarian justification
- utilitarian theory
- property rights
- Fairness Theory
- cause to suspect
- Lockean Proviso
- global context
- non-utilitarian theory
- intellectual property
- non-utilitarian justification
- capture theory