there 00:03:24 is something really special about going off into the natural world it is especially by oneself i think that it it can enable us to kind of open up and sort of let go of our usual utilitarian 00:03:38 way of relating to everything and and and sort of be able to learn what the trees you know what what the meadows what what the river has to offer uh and i think that's that's really 00:03:52 important

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).

The U.S. social contract establishes a utilitarian basis for protection of intellectual property rights: protection as a means of encouraging innovation.

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...")

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 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.) .

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 .

Keywords : anticommons, copyright, intellectual property, Lockean Proviso, patent, property rights, state of nature, trademark, utilitarian theory