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Justifications Notes

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GENERAL JUSTIFICATIONS UTILITARIANISM-

RATIONALE (Bentham): Laws are socially justified if they bring the greatest happiness or benefit to the greatest number of people RATIONALE (Hettinger): Justifications for IP rights are not strong, but utilitarianism provides the best justification o IP rights are "incentives for the creation of a socially optimal output of intellectual goods" o Restricts current availability and use for the purpose of increasing future availability and use of new intellectual products
? Should question if the rights increase future availability more than they restrict (e.g. short term rights might be better) o Patents might be used "as a device to monopolise industries", so they are not necessarily "conducive to a strong competitive economy" RATIONALE (Croskery): Information goods are excludable, non-rival goods o Excludable: Can be provided to one person without being provided to everyone o Non-rival: Multiple uses do not conflict o Mix of government and market control is needed
? Government control helps to avoid the collective action problem (incentive to free-ride on non-rival goods)
? Market can help determine consumer preferences

LAW AND ECONOMICS-RATIONALE: Ability to free-ride undermines allocative efficiency o Bulk of the cost of creating IP is the initial investment, whereas reproducing is much cheaper so free-riding is more attractive than creating RATIONALE (Landes and Posner): Especially for trade marks o Charging a price for a public good reduces access to it by making it artificially scarce, but it increases the incentive to create it in the first place ISSUE (Lemley): IP should be regulated by the market instead of long IP rights o Exclusive rights allow creators to charge a "supracompetitive price" o Creators are necessarily the best placed to exploit the intellectual product after its creation, the market is better at finding out optimal distribution and price
? Others may be better placed to improve on the work o Challenges the idea of tragedy of the information commons
? Information isn't finite and consumption is nonrivalrous

NATURAL RIGHTS CREATIONRATIONALE: The creator is entitled to control what he creates ISSUE (Spence): Humans do not create ex nihilo so all their works are influenced by the genre or culture they are in

o

Copyright concerns the relationship between creators and 3rd parties

LABOUR/REWARD--

RATIONALE (Locke): What a man mixes his labour with becomes his property "at least where there is enough, and as good left in the common for others" o Applied to IP: By mixing intellectual labour with the ideas, theories or raw materials in the commons, the creator should gain a property right ISSUE (Davies/Aplin): Total value isn't necessarily attributable to the labour o Value of some creations may result from social influences (e.g. trade marks) o Labour only adds value to the existing materials, so why should the creator receive a right over the entire value and not just the added value
? E.g. Writing literature builds on other works in the genre o Alternative mechanisms might be used to reward creators instead of property rights
? E.g. awards, acknowledgement, status, support o The proviso requires that enough be left in the commons
? Not always clear what the commons consists of and how much is enough ISSUE (Spence): Unclear what counts as being worth protecting o If based on the labour, what degree of effort is required?
? Risk of "protecting only the perspiring, and not the inspired, creator" o If based on the contribution, what level of contribution is required?
? Who decides what is a valued contribution?
o Creator might already be rewarded in other ways (e.g. recognition) ISSUE: If most IP rights are assigned to employers, whose labour is really being rewarded?

PERSONALITY-HARM

RATIONALE (Hegel/Kant): Property is a mechanism for self-actualisation, personal expression and dignity o Alienation of the ideas inherent in the self is an expression of the self o Others cannot create more copies because that infringes on the creator's right to his "universal aspect of expression" ISSUE (Hughes): Not all works are equally suited to displaying the creator's personality o Art, literature and music are "clearly receptacles for personality" whereas software and technology is influenced more by economic efficiency/physical limitations ISSUE (Spence): 2 Objections o Questionable how many works constitute or intended to embody the creator's personality.
? The concept of personality itself is problematic o Unclear why the creator should be able to control the expression if the use doesn't distort/change the meaning of the work but is merely an accurate reproduction
? If the creator must have control, need to grant right of personal autonomy.

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RATIONALE: The unauthorized use causes harm to the creator o Whereas the would-be user is not harmed by being excluded ISSUE (Spence): This is not a well-reasoned justification o Unclear that unauthorized use causes harm per se
? Unless the public perception of the work or the work itself is changed
? Usually, the works are not "crowdable" so unauthorized use is not harmful
? Cannot say that the creator is harmed from not being able to profit from the use, since that assumes a existing right to exclusive use o Unclear that exclusion doesn't harm the would-be user
? If the work has become part of the culture/social life, preventing others from using it may make them worse off
? Use of the work might be necessary to comment on the work (esp copyright) o Unclear that this type of harm deserves legal remedy in the first place

UNJUST ENRICHMENTRATIONALE: The unauthorized user shouldn't be allowed to reap without sowing ISSUE (Spence): This isn't an independent principle that can be used to justify entitlement o There is only unjust enrichment if we assume that the creator has a stronger existing entitlement to the creation

HUMAN RIGHTS-RATIONALE (Treaties): Based on the right to property o UDHR Art 27: Right to protection of moral and material interests resulting from scientific, literary or artistic production of which he is the author o ECHR Art 1 Protocol 1: Peaceful enjoyment of possessions o Charter on Fundamental Rights: IP as within the scope of possessions ISSUE (Yu): This might "undermine the claim that human rights are of fundamental importance to humanity" o Not all attributes should qualify as having the importance of human rights o Classification as human rights might lead to unnecessary expansion ISSUE (Drahos): Property rights are not the only human rights affected by IP o Unclear that IP rights should be human rights
? IP rights exist for a limited amount of time, unlike fundamental rights
? We don't view States that lack a IP system as breaching human rights
? Might be based on personality theory, but that doesn't apply to all IP
? Is universal recognition enough to make it a universal right?
o IP rights should be viewed as instrumental rights to serve truly fundamental needs o Use of IP rights can affect right to health, development and cultural rights

EVALUATING JUSTIFICATIONSMany of the IP rights were developed a long time ago, so they are perhaps unsuited for the current age

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