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A. Why Do We Have IP Law? Æ c. Theoretical Basis for Protection (why would we want to restrict IP’s use?)
1 i. Radin Personhood Theory 1. A person’s creation is identified with the person’s sense of continuity of self or autonomy ii. John Locke’s Natural Rights Theory 1. 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 iii. Utilitarian/Economic Incentive Theory Æ DOMINANT in American IP Law 1. We want people to invent things so we have to give them incentive to do so 2. Protecting one’s intellectual property is in the interest of society at large a. Encourages inventors, authors, and artists to invest in the process of creation b. Involves a cost-benefit analysis (i.e., is it work protecting the particular work for the greater good?) 3. How do we provide incentive? a. Government subsidies: downside of relying on this is that we would rather depend on private enterprises to direct subsidies. i. i.e. who will the government pick to do the invention? ii. Free market might be better. b. Patrons and prizes: when people are innovative they are often rewarded by society (and also patrons) i.e. Nobel Peace Prize c. Private exclusive rights: legal “fence” around invention – incentivizes because you give permission in exchange for money. d. Overall Goal of IP Policy i. Fostering innovation – put people to work with ultimate goal of dissemination to society. 1. 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.” a. 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. ii. Bentham: society’s goal is “the greatest happiness for the greatest number” ( utilitarianism ) 1. Don’t want to control IP so tightly it can’t spread to society. iii. Tension in IP law/”Great Holy Balance” 1.

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