Academic journal article Harvard Journal of Law & Technology

What Intellectual Property Can Learn from Informational Privacy, and Vice Versa

Academic journal article Harvard Journal of Law & Technology

What Intellectual Property Can Learn from Informational Privacy, and Vice Versa

Article excerpt

TABLE OF CONTENTS I. INTRODUCTION II. LESSONS IF PRIVACY IS UNDERSTOOD AS CONTROL OF    INFORMATION     A. Scarcity and Inequality     B. Control as a Property Paradigm       1. The Danger of Expanding Property       2. The Danger of Expanding Intellectual Property III. LESSONS IF PRIVACY IS UNDERSTOOD AS ACCESS TO   INFORMATION     A. Invigorating the Public Domain       1. An Institutional Watchdog for the Public Domain       2. Standardized Ways To Let Rights Enter the Public          Domain     B. Trade Secret Law as the Better Analogy? IV. LESSONS IF PRIVACY IS UNDERSTOOD AS CONTEXTUAL   INTEGRITY     A. IP and Social Norms     B. Contextualizing IP and Privacy V. CONCLUSION 

I. INTRODUCTION

We resort to intellectual property ("IP") theory to justify certain IP rights or calibrate how specific IP rules should function. Most commonly, we differentiate between three main theories: personality, labor, and welfare, (1) occasionally supplemented by interdisciplinary approaches. (2) Some scholars portray these theories as categorically different; the traditional fault line runs between US-style utilitarian welfare theory and continental European-style deontological justifications based on Hegelian personhood or Lockean labor theories. (3) Others perceive their overall prescriptive power as limited. (4)

Privacy law is also governed by theories defining, justifying, and calibrating it. However, the theoretical backdrop is much more disaggregate: descriptive taxonomies (5) compete with normative theories, of which no single classification appears to be universally accepted. (6) This Note will distinguish among three widely recognized theories of informational privacy, which conceptualize privacy as control, (7) limited access, (8) and contextual integrity. (9)

But are there theories to analyze both IP and privacy? Intuitively, scholars have made a variety of arguments based on a structural parallelism of privacy and IP. (10) Scholarship has also carefully dissected situations with converging (11) or conflicting (12) interests between IP and privacy. But these accounts are selective and do not rely on a common theory. Another line of scholarship uses the theories of IP to argue in favor of a property-style right in privacy interests. (13) Apart from that, the use of IP theories to address the privacy implications of IP is scarce. (14)

In contrast, this Note takes another path by proposing to apply to IP the three commonly accepted theories of privacy--control, limited access, and contextual integrity. Both IP and privacy law regulate the flow of information, and thus control thereof, access thereto, and context therein. To be sure, these theories on the flow of information do not "justify" IP. However, through this theoretically informed prism of structural parallelism, some murky policy questions become clearer, so that IP can draw lessons from informational privacy, and conversely, informational privacy can learn from IP.

From the "control" viewpoint of structural parallelism, Part II of this Note critiques the control-based property view of IP and privacy. Under the "access" perspective, Part III presents an argument about the importance of the public domain and its competing influences on privacy and IP, and advocates for Creative Commons-style techniques of applying IP tools to privacy problems. From the "contextual integrity" angle, Part IV offers some insights of social norms and locked-in legal norms in privacy and IP. Part V concludes.

II. LESSONS IF PRIVACY IS UNDERSTOOD AS CONTROL OF INFORMATION

A classic theory of privacy understands privacy as control over information. In the often-cited words of Professor Alan Westin, "[p]rivacy is the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others." (15) The privacy-as-control theory has many iterations and can be seen as shorthand for other theoretical considerations--such as the person and her autonomy and dignity as an end in itself or as a means to enable flourishing relationships and communities (16)--demanding that the individual should be in control of whether and how to reveal personal information. …

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