Wilkof goes on to state
A decade ago, Professor William Fisher, of Harvard University, made a challenging attempt to answer “yes”, in a book chapter entitled “Theories of Intellectual Property”. While never quite distinguishing between a philosophy, an approach, and a theory of intellectual property, Fisher identifies four analytical constructs, which we will call “theories”, namely—(i) utilitarian for maximizing net social value, (ii) Lockean (one has the right to the fruits of his intellectual labour); (iii) protection of personality in works; and (iv) fostering a just and attractive culture.In his editorial for JIPLP Wilkof argues that
The utilitarian theory applies economic constructs to propose how intellectual property rights can achieve the Benthamite ideal of “the greatest good for the greatest number.” Cloaked in the more current notion of “wealth-maximization”, the focus is how to balance the social costs and benefits associated with giving legal effect to IP laws and rules. While the theory has produced various elegant propositions on how to conceive of this balance, it has proved to be devilishly difficult to create robust ways to measure inputs, outputs and process.The second, i.e. labour theory, reflects Locke on property rights -
Locke asserted that a person enjoys a natural right in the fruits of his labour in transforming raw materials (viewed as including, eg facts and concepts) that are “held in common” into a finished product of enhanced value, and the state has a duty to enforce the natural right that derives from the labour.Wilkof's criticism is that
it does not self-explain why labour added to a resource “held in common” should entitle one to a property right in such resource; if “yes”, what is meant by “intellectual labour” and “held in common”; and how far should one's rights go in the fruits of his labour (as Robert Nozick observed, “if I pour my can of tomato juice into the ocean, do I own the ocean?”). As a result, seeking to apply the Lockean approach of property must inevitably end in potentially unmanageable analytical uncertainty.Gewirthian flourishing? The personality theory is characterise by Fisher
as justifying property rights “when and only when they would promote human flourishing by protecting or fostering fundamental human needs or interests.”Wilkof asks how can we identify the needs or interests to be promoted, noting Fisher's identification of four needs or interests appropriate for intellectual property - benevolence, identity, self-realisation and privacy.
He comments that there is however no agreement on how to apply those interests, e.g. -
is protection of trade secrets “necessary” to protect interests of privacy? Some say “yes” (a right of privacy extends to the freedom to disclose to a limited circle of friends without the fear that it will be disclosed to the entire world), while others say “no” (since most trade secrets are owned by corporations, that do not have the “personal features” that privacy is intended to protect).He notes that the final theory (voiced by “an eclectic cluster of political and legal theorists”) has less of an established foundation -
Called “social planning theory”, it differs from utilitarian theory in that it seeks to go beyond the notion of “social welfare” to a much broader vision of society serviced by intellectual property. An example given is Neil Netanel's view of copyright as intending to serve “a robust, participatory, and pluralist civil society,” where “unions, churches, political and social movements, civic and neighborhood associations, schools of thought, and educational institutions” abound.Wilkof concludes that it
does not, and cannot, achieve agreement on what are the goals that such “social planning” seeks to achieve. As such, it too is inadequate.'Fear and Loathing: Shame, Shaming, and Intellectual Property' by Elizabeth Rosenblatt investigates
the relationship between intellectual property protection, shame, and shaming. Although some scholars have examined shame and shaming as they relate to criminal law and behavior, none have considered how shame and shaming govern intellectual property and copying behavior. This paper identifies and focuses on two significant intersections: First, shame shapes the behavior of would-be copiers, who abide by anti-copying norms even in the absence of formal intellectual property protection. Second, public shaming shapes the behavior of intellectual property owners, who refrain from aggressively enforcing their rights to avoid being identified as bullies or trolls.
These two shame/shaming effects have opposing results — on one hand, restriction on copying, and on the other, the freedom to copy — but they unite to establish and enforce intellectual property “negative spaces” where innovation and creation thrive without significant formal intellectual property protection or enforcement. In areas beyond the reach of formal intellectual property protection, shame helps define the boundaries of informal or norms-based intellectual property practices. In areas governed by formal intellectual property protection, shaming helps define the boundaries of rights holders’ enforcement forbearance. The result of these effects is an overlay of shame- and shaming-driven behavior that sits atop, and informally adjusts, the boundaries of formal intellectual property protection. This, in turn, requires us to adjust our thinking about the ideal boundaries of formal protection. Shame and shaming are not suitable substitutes for formal law, nor are they miracle cures for law’s failings, but they may act as guideposts for determining where to draw the lines of formal legal protection.