Post by Eric Claeys, George Mason University, Antonin Scalia Law School
In a recent post, Henry Smith made some perceptive observations about the state of contemporary intellectual property scholarship. Henry was commenting on a panel at a recent conference, in which panelists stressed that “treating intellectual property as a kind of property does not mean assuming it is absolute.” And he noted that what he called “external” accounts of IP are much better-represented than what he called “internal” or “interpretivist” approaches to IP.
I have offered a few thoughts on Henry’s post already, and I hope to offer a few other thoughts in due time. I am extremely interested in Henry’s question because I have been working on an article focusing on those same questions. As luck would have it, I just received news that the article was accepted for publication in the journal Jurisprudence. I’d like to take a minute to flag the article (still in draft form) and summarize its arguments.
The article is titled “Intellectual Property and Practical Reason.” The article’s main intention is to show how general principles of a certain family of normative theories supply basic guidance for the field of IP. The theory-family covers theories loosely associated with natural law and rights-based forms of eudaemonist or perfectionist political theory. (In what follows, I’ll describe these approaches as “rights-based perfectionist” approaches.) In IP, Wendy Gordon, Ken Himma, Adam Moore, Rob Merges, Adam Mossoff’s, and my own work on Lockean labor theory all fall in this family. But so do Nussbaum-Sen “capabilities” theories, and (at least on some interpretations) Rawlsian fairness theories.
“Intellectual Property and Practical Reason” aims to clarify how rights-based perfectionist normative approaches do and DO NOT shape the substance of the positive law of IP. In perfectionist justifications for rights, there exist what one might call “natural” or “nonconventional” rights to property. But those rights are justified in relation to more fundamental interests people have in survival and rational flourishing. The interests and the rights do not provide direct and immediate guidance to particular decisions in law or policy. Instead, the interests and the rights inform law and policy in two ways. First, interests and rights supply a basic justification and foundation for a system of IP. Then, the interests and rights inform more specific reasoning as people try to identify the just bounds of different rights in different situations.
The article illustrates with (and probably flogs to death) the example of speed limits. A rights-based perfectionist theory can show that people have nonconventional rights to travel and be free from unreasonable risks of injury. These foundational rights, in turn, help decision makers clarify which rights seem to take priority in different recurring situations—e.g., which neighborhoods should have low or high volumes of traffic, and what kinds of roads should be designated as side streets or freeways. That general approach generates a broad framework for developing specific proposals, and also for considering different sources of evidence and consequences arguably relevant to different proposals. Rights-based perfectionist scholars often call the field in which perfectionist principles get implemented a domain of “practical reason,” which explains the article’s title.
The paper focuses on IP for creative works–i.e., patent, copyright, and American trade secrecy, but not trade mark. The Article illustrates by careful study of four legal doctrines: U.S. patent law’s novelty requirement; U.S. copyright law’s originality requirement; copyright’s idea-expression distinction; and the duration limits that run throughout IP. I chose these doctrines because they illustrate what I regard as the three most fundamental issues that any theory of property must address: when a resource deserves to count as private property or a public resource; how to distinguish the res for different property rights from one another; and how to structure duration limits for property rights.
I wrote “Intellectual Property and Practical Reason” to convey two main lessons. First, in perfectionist justifications for IP rights, the interests that justify property rights simultaneously limit those rights. And second, perfectionist theory supplies a general framework clarifying how basic justifications for property rights apply to practice. That framework covers “practical reason” and subsidiary phases involving “specification” and “determination.”
Yet these contributions may seem alien to many IP scholars … precisely because of the factors that prompted Henry to write his original post. Thus, many readers (especially ones who prefer “external” approaches to IP) may find the piece interesting simply because it proves the main point of Henry’s original post: “treating intellectual property as a kind of property does not mean assuming it is absolute.” Separately, many so-called “external” scholars assume that rights-based justifications for IP cannot take into consideration relevant empirical evidence, experience, or consequences. In reality, perfectionist theories of rights can make evidence, experience, and consequences relevant. Or, scholars assume that such rights-based justifications are too indeterminate to structure and limit rights in practice. I hope that “Intellectual Property and Practical Reason” accurately depicts the manners in which a perfectionist justification for property rights does and does not constrain practical decision making about the specifics of an IP system.
But I have not finalized “Intellectual Property and Practical Reason,” and I’d welcome any comments by readers on its argument or intended contributions.