Values, Questions, and Methods in Intellectual Property: Introduction

By Sheff, Jeremy N. | St. John's Law Review, October 1, 2016 | Go to article overview

Values, Questions, and Methods in Intellectual Property: Introduction


Sheff, Jeremy N., St. John's Law Review


Intellectual property ("IP") scholarship has a unique distinction among legal academic disciplines: some of its practitioners question whether the subject of their study ought to exist. We should pause to consider how remarkable this is. Constitutional law scholars usually do not question whether political communities should be governed by constitutions. Criminal law scholars generally accept that the state ought to be able to define and punish crimes. Contract law scholars do not question that some promises should be enforceable in court. To be sure, in each of these disciplines there are hotly debated questions over the appropriate scope and justification for particular legal rules, and that is true for IP as well. But perhaps the central theoretical question in IP debates-and particularly patent debates-is whether IP rights should exist at all, or whether we would be better served by some other system for regulating the creation and distribution of knowledge.1

This skepticism has a long pedigree in American IP law. In patent law, it encompasses Thomas Jefferson's musings on how societies could reasonably disagree about whether patents "produce more embarrassment than advantage,"2 and Fritz Machlup's ambivalent quip:

If we did not have a patent system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend instituting one[, b]ut since we have had a patent system for a long time, it would be irresponsible, on the basis of our present knowledge, to recommend abolishing it.3

America's history of copyright law is less ambivalent but more checkered. In the nineteenth century, America was a pirate nation, protecting the few works produced by its own citizens but refusing to grant copyrights over the far larger and more highly demanded body of works of authorship produced overseas. Now that we have become a net exporter of copyrightable works, we have also become a net exporter of rightholder-favoring copyright laws, embedding protective Western-and particularly American-standards into international legal instruments such as TRIPS and bilateral and multilateral trade agreements.4

Our ambivalence about the very existence of IP rights suggests an unsteady normative foundation for those rights. The normative justifications offered for IP law have traditionally taken two forms in the American academic literature. There are consequentialist justifications, which hold that IP rights exist to avoid the free-riding problems that attend production of nonrivalrous and nonexcludable "public goods," such as inventions and works of authorship. Under this view, a limited period of exclusivity gives creators a window to engage in supracompetitive monopoly pricing, allowing them to recoup their investment of time, effort and resources in production of intangible resources that are costly to create but cheap to copy.5 Then there are deontological justifications, principally drawing on the labor-desert theories of John Locke, which hold that the labor undertaken in creating a new invention or work of authorship endows the creator with a moral claim to be compensated for-and to control-its use.6 In recent decades, these justifications have been examined using new methods, as IP law scholarship has taken what might be called an "empirical turn."7

One line of scholarship in this vein purports to test a fundamental premise of the consequentialist justification for IP laws: they incentivize people to create new inventions and works of authorship. We may call this premise the "incentive thesis."8 Much of the new empirical evidence suggests that in some circumstances, for some purposes, the incentive thesis is false. For example, the innovative experiments reported by our panelists Chris Buccafusco, Jeanne Fromer, and Chris Sprigman demonstrate that small pecuniary incentives do not correlate positively with creative or innovative activity or outputs in discrete short-term tasks. …

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