Why Do We Have IP Law?
Theoretical Basis for Protection
(why would we want to restrict IP’s use?)
Radin Personhood Theory
A person’s creation is identified with the person’s sense of continuity of self or autonomy
John Locke’s Natural Rights Theory
The person developed the work through the labor of his or her own body/hands, and therefore, the
person should have ownership of the fruits of his or labor
Utilitarian/Economic Incentive Theory
DOMINANT in American IP Law
We want people to invent things so we have to give them incentive to do so
Protecting one’s intellectual property is in the interest of society at large
Encourages inventors, authors, and artists to invest in the process of creation
Involves a cost-benefit analysis (i.e., is it work protecting the particular work for the greater
How do we provide incentive?
Government subsidies: downside of relying on this is that we would rather depend on
private enterprises to direct subsidies.
i.e. who will the government pick to do the invention?
Free market might be better.
Patrons and prizes: when people are innovative they are often rewarded by society (and also
patrons) i.e. Nobel Peace Prize
Private exclusive rights: legal “fence” around invention – incentivizes because you give
permission in exchange for money.
Overall Goal of IP Policy
– put people to work with ultimate goal of dissemination to society.
U.S. Constitution — Article I, sec. 8: “The Congress shall have Power . . . To promote the Progress
of Science and the useful Arts, by securing for limited Times, to Authors and Inventors, the
exclusive Right to their respective Writings and Discoveries.”
We don’t have IP law to reward inventors but rather to live in a society where the goal is
progress – rewarding is just the means to the end of progress.
Bentham: society’s goal is “the
for the greatest number” (
Don’t want to control IP so tightly it can’t spread to society.
Tension in IP law/”Great Holy Balance”