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Copyright Date: 2011
Published by: Harvard University Press
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  • Book Info
    Book Description:

    In a sophisticated defense of intellectual property, Merges draws on Kant, Locke, and Rawls to explain how IP rights are based on a solid ethical foundation and make sense for a just society. He also calls for appropriate boundaries: IP rights are real, but they come with real limits.

    eISBN: 978-0-674-06112-5
    Subjects: Law, Philosophy

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. Preface
    (pp. ix-xvi)
  4. CHAPTER ONE Introduction: Main Themes
    (pp. 1-28)

    Intellectual property (IP) law today is like one of those sprawling, chaotic megacities of the developing world—Mexico City, maybe, or Shanghai. Construction cranes are everywhere. The old city center—the ancient core of the field—is today surrounded by new buildings, new neighborhoods, knots of urban growth, budding in every direction, far off into the distance. As a longtime resident, an old-timer who for a good number of years now has walked the streets and taken in the scenes, I find myself with decidedly mixed feelings about all this. I marvel at the bold, new energy unleashed in the...

  5. PART ONE Foundations

    • CHAPTER TWO Locke
      (pp. 31-67)

      Because of his enormous influence, it makes sense in any serious discussion of property to start with the writings of John Locke. But because there are limits to how much can be usefully packed into a single chapter, I need to lay out up front what I choose to emphasize.

      I will concentrate on only those aspects of Locke’s thought that contribute directly to understanding the normative foundations of IP law. Even on these topics, I can only summarize, because so much has been written. There are a number of reliable guides capable of giving the full-out, languorous tour of...

      (pp. 68-101)

      We turn next to the property theory of Immanuel Kant. Despite having made fundamental contributions to epistemology, ethics, and a wide range of other subjects, Kant is often excluded from the list of the preeminent philosophers of property. However, I hope to show that Kant’s ideas about property are as stimulating and useful to the IP field as those of Locke.¹ The Kantian concepts I emphasize—individual will, appropriation (or “possession”), and personal freedom (or autonomy)—are welcome additions to our understanding of the role of property in general. But they are particularly welcome to the task of understanding intellectual...

    • CHAPTER FOUR Distributive Justice and IP Rights
      (pp. 102-136)

      Property and redistribution are ideas that, at least in most accounts, pull hard in opposite directions. Property, as we have seen, means at heart individual control over discrete assets, while distributive justice (the fair distribution of resources in society) is often associated with redistribution, which requires state redirection of economic resources. Property, taken to its logical conclusion, means total individual control: it’s mine; no one (especially the state) can take it away. Redistribution, pushed to its limit, means everything belongs to everyone (as mediated by the state), everything is fair game for state seizure and allocation. Nothing is “mine,” everything...

  6. PART TWO Principles

    • CHAPTER FIVE Midlevel Principles of IP Law
      (pp. 139-158)

      I start this chapter by describing “midlevel principles” in legal theory—concepts that run through and tie together disparate doctrines and practices, and that provide a common policy vocabulary that bridges different foundational viewpoints such as Kantian and utilitarian. I then describe what I see as the four primary midlevel principles in IP law: non-removal (that is, the public domain); proportionality; efficiency; and dignity. The remainder of the chapter is devoted to a brief explanation of each of these principles, with some supporting examples. Chapter 6 is devoted to an extensive discussion of one principle, proportionality.

      Midlevel principles are basic...

    • CHAPTER SIX The Proportionality Principle
      (pp. 159-192)

      In Chapter 5 I described four midlevel principles of IP law. All are basic, all are important, and all encompass a wide range of detailed rules and doctrines; these are the features that make them principles. But of the four, I want now to home in on one, the proportionality principle.

      I have chosen to emphasize proportionality for two reasons. First, it is the most undertheorized of the four midlevel principles. A huge amount has been written about the public domain, which I describe under the principle of nonremoval. Efficiency, the second midlevel principle, is in a sense the animating...

  7. PART THREE Issues

    • CHAPTER SEVEN Creative Professionals, Corporate Ownership, and Transaction Costs
      (pp. 195-236)

      I have spent a lot of time so far justifying IP law at a foundational, theoretical level. I argued in Chapters 2 through 4 that IP law is fully consistent with, and made good sense in terms of, foundational ideas about property rights and the basic organization of society. In Chapters 5 and 6 I laid out what I see as the essential principles of the field: Nonremoval/public domain, efficiency, dignity, and proportionality. I devoted Chapter 6 to a detailed consideration of the last principle. I hope it is well established by this point that IP law deserves a place...

    • CHAPTER EIGHT Property in the Digital Era
      (pp. 237-269)

      Nowhere is the fate of creative professionals under more pressure than in the world of digital content. So in this chapter I continue to extend and apply the basic normative framework of Chapters 2 through 4, mixing in as well the midlevel principles of Chapters 5 and 6. My goal is to show that even in the part of the IP field undergoing the most rapid change, and even in a setting where most IP scholars believe IP rights often stand in the way of creativity rather than promoting it, robust IP protection is still the best and fairest policy....

    • CHAPTER NINE Patents and Drugs for the Developing World
      (pp. 270-288)

      One of the greatest challenges facing the IP system today is what to do about patents on crucial pharmaceutical products needed in developing countries. For the most part, these patents are held by pharmaceutical companies in the developed world. Many argue that diseases in the developing world are ignored by “big pharma,” that companies skew their research toward diseases or conditions of little relevance to the world’s neediest populations. The same voices say that even when pharmaceutical companies have a drug that the developing world needs, the poor of the world seldom have access to it at a price they...

  8. CHAPTER TEN Conclusion: The Future of Property
    (pp. 289-312)

    Property does have a future. Especially if it reflects a proper respect both for individual owners and the needs of the community—that is, if it is based on what a philosopher would call a liberal theory of property—it can continue to serve a vital function in a well-designed sociopolitical system. As more and more of society’s valuable assets come to be incorporeal and intangible, this function will more and more come to be served by the species of property we call IP. So in constructing a viable theory of property, it makes sense to start with IP, or...

  9. Notes
    (pp. 313-402)
  10. Index
    (pp. 403-405)