|legal theory: philosophy|
Philosophic Perspectives on Intellectual Property
The term "intellectual property" refers to a loose cluster of legal doctrines that regulate the uses of different sorts of information. The law of copyright protects "original forms of expression" -- novels, movies, musical compositions, computer software, etc. Patent law protects inventions -- machines, processes, (also) computer software, etc. Trademark law protects words and symbols that identify for consumers specific goods and services -- brands of cereal, clothing, automobiles, etc. Trade-secret law protects information that companies have tried but failed to conceal from their competitors -- soft-drink formulas, confidential marketing strategies, etc. The "right of publicity" protects celebrities' interests in their images and identities.
In recent years, a growing number of legal theorists have attempted either to make sense of this complex field or to propose ways in which it should be reformed. Most of these efforts have taken one of four forms:
The fourth of these approaches falls comfortably within the capacious family of arguments we have described as "economic analysis of law." Accordingly, it is discussed in a separate essay on "Economic Approaches to Intellectual Property." The first and second, by contrast, draw self-consciously upon well defined traditions in political and moral philosophy. Set forth below are brief discussions of their central claims and the problems their proponents have encountered. If you are curious concerning the origins of these various theories or the ways in which they have figured in recent judicial decisions, you may wish to consult the larger essay from which these materials have been adapted: "Theories of Intellectual Property." [##]
Before plunging into the analysis, consider the following case. (The facts have been adapted from a real dispute -- the outcome of which we will tell you in due course.)
All went well for many months. The design of the building was well received, and attendance (both "actual" and "virtual") at the museum steadily increased. Popularity had a price, however. Other people began making use of the building in ways that both the Museum and I.M. Pei found offensive. Three of these "parasitic" activities were especially galling:
Should either I.M. Pei or The Rock and Roll Hall of Fame be able to enjoin the activities of -- or recover damages from -- any of these three parties? You might find it useful to make a note now of your preliminary response to that question. Then, as you peruse the following materials, ask yourself how each theorist we discuss might answer the same question. At the end, we will let you know how these disputes would fare under contemporary American law.
The best way to get a feel for philosophic arguments is to see how their proponents have tried to put them to work. Once we have witnessed the theories in action, we will consider in more detail the complexities and difficulties associated with them.
A fine illustration of the labor-desert theory is Robert Nozick's brief but influential discussion of patent law in Anarchy, State, and Utopia. After associating himself with Locke's argument, Nozick turns his attention to Locke's famous (and famously ambiguous) "proviso" -- the proposition that a person may legitimately acquire property rights by mixing his labor with resources held "in common" only if, after the acquisition, "there is enough and as good left in common for others." Nozick contends that the correct interpretation of this limitation ("correct" in the senses (a) that it probably corresponds to Locke's original intent and (b) that, in any event, it is entailed by "an adequate theory of justice") is that the acquisition of property through labor is legitimate if and only if other persons do not suffer thereby any net harm. "Net harm" for these purposes would include such injuries as being left poorer than they would have been under a regime that did not permit the acquisition of property through labor (something Nozick concedes would be difficult to ascertain) or a meaningful constriction of the set of resources available for their use -- but would not include a diminution in their opportunities to acquire property (through labor) for themselves.
Construed in this fashion, the Lockean proviso is not violated, Nozick argues, by the assignment of a patent right to an inventor because, although other persons' access to the invention is undoubtedly limited by the issuance of the patent, the invention would not have existed at all without the efforts of the inventor -- and (although Nozick is not entirely clear on this point) the inventor would not have invented the invention and made it public had he not been lured by the prospect of a patent. Consumers, in other words, are helped, not hurt, by the grant of the patent. Nozick contends, however, that fidelity to Locke's theory would mandate two limitations on the inventor's entitlements. First, persons who subsequently invented the same device independently (i.e., without any knowledge of the first inventor's discovery) must be permitted to make and sell it; otherwise the assignment of the patent to the first inventor would leave them worse off. Second, for the same reason, patents should not last longer than, on average, it would have taken someone else to invent the same device had knowledge of the invention not disabled them from inventing it independently. (Although Nozick may not have been aware of it, implementation of the first of these limitations would require a substantial reform of current patent law -- which, unlike copyright law, does not contain a safe harbor for persons who dream up the same idea on their own.)
The most fully developed essay in this family is Justin Hughes tightly argued study: "The Philosophy of Intellectual Property." Hughes introduces his argument as follows:
After a careful explication of Hegel's reflections on the relationship between personality and property rights in general and intellectual property in particular, Hughes considers how Hegel's argument might be brought to bear on specific features of the contemporary law of copyright, patent, and publicity rights. One of the things that makes the argument both tricky and potentially powerful, Hughes contends, is that different kinds of intellectual products seem to embody to radically varying degress the personalities of their creators. Somehow, the law ought to take those variations into account.
Finally, Hughes turns his attention to the notoriously difficult topic of freedom of alienation. How many of the rights enjoyed by the creator of an intellectual artifact should he or she be allowed to give or sell to others? Margaret Radin has devoted an entire book to this topic. Hughes again relies on Hegel for a qualified guideline: Authors and inventors should be permitted to alienate copies of their works (thereby enabling them to earn respect, honor, admiration, and money from the public) but should not be permitted to surrender certain of their entitlements to their creations (most importantly, their right to prevent others from mutilating or misattributing their works).
The foregoing accounts, we hope, are provocative and suggestive. Before you lean heavily on them, however, you must in some way come to terms with various objections that have been -- or could be -- deployed against each. We present them here, not for the purpose for discouraging you from seeking guidance from analyses of these sorts, but rather in hopes of prompting you to take the philosophic enterprise seriously.
The most serious of the difficulties that confront devotees of Locke's argument is that it is not altogether clear that the argument supports any sort of intellectual-property law. The source of the problem is ambiguity in Locke's original rationale for property rights. Why exactly should labor upon a resource held "in common" entitle the laborer to a property right in the resource itself? Scattered in Chapter 5 of Locke's The Second Treatise can be found six related but distinguishable answers to that question.
Whether Locke's theory provides support for intellectual property depends upon which of these various rationales one regards as primary. If, for example, one sees arguments 4 and 5 as the crux of the matter, then The Second Treatise would seem to provide strong support for most sorts of intellectual property. After all, most authors and inventors work hard, and their intellectual labor typically is a far more important contributor to the total value of their creations than the raw materials they have employed. On the other hand, if arguments 1 and 2 are stressed, the case for intellectual-property rights is far weaker. As Seanna Shiffrin has shown, crucial to those two arguments is the proposition that certain articles essential to life (such as food) cannot be enjoyed in common; "their use must, of necessity, be exclusive." But intellectual products plainly are not like that. Not only is access to them typically not necessary for survival, but they can be used by an infinite number of persons, simultaneously or in sequence, without being used up.
Whether Locke's theory provides support for any intellectual-property rights is thus indeterminate. It depends on which aspects of Locke's original theory is dominant. Locke did not say, and we have no way of knowing. Assume, however, that we somehow surmount barricade identified by Shiffrin and conclude that intellectual labor does give rise to a natural entitlement to its fruits -- an entitlement that the state must recognize and enforce. Other difficulties await us.
Perhaps the most formidable is the question: What, for these purposes, counts as "intellectual labor"? There are at least four plausible candidates:
The first of the four is probably closest to Locke's original intent, but he was not focusing on intellectual labor. Justin Hughes has shown that serious arguments can be made in support of the both the second and the third. And Gary Becker reminds us how important the fourth is to our images of deserving authors and inventors. No grounds on which we might select one or another are readily apparent.
Unfortunately, our choice among these four options will often make a big difference. The third, for instance, suggests that we should insist before issuing a patent or other intellectual-property right, that the discovery in question satisfy a meaningful "utility" requirement; the other three would not. The second would counsel against conferring legal rights on artists who love their work; the other three point in the opposite direction. The fourth would suggest that we add to copyright law a requirement analogous to the patent doctrine of "nonobviousness"; the others would not. In short, a lawmaker's inability to choose among the four thus will often be disabling.
Similar troubles arise when one tries to apply Locke's conception of "the commons" to the field of intellectual property. What exactly are the raw materials, owned by the community as a whole, with which individual workers mix their labor in order to produce intellectual products? At least seven possibilities come to mind:
When applying the Lockean argument to intellectual property, it will often make a difference which of these options one selects. For example, option (c) is difficult to reconcile with contemporary copyright and trademark law, under which much of our cultural heritage (Mickey Mouse; "Gone with the Wind"; the shape of a Coke bottle) is owned, not by the community, but by individual persons or organizations; options (a) and (b) present no such difficulty. Patent law is consistent with option (d) but not (e) -- insofar as it permits ownership of many extant "ideas"; copyright law, which (at least formally) does not allow the ownership of any "ideas" (only distinctive ways of "expressing" them) meshes comfortably with either. As Justin Hughes has shown, the Lockean "sufficiency" proviso can be satisfied fairly easily if one chooses option (f) -- on the theory that the deployment of most ideas enable other people to "reach" an even larger set of ideas and thus enlarges rather than subtracts from the commons. By contrast, if one adopts option (g) -- as both Wendy Gordon and Robert Nozick appear to do -- the sufficiency proviso becomes a good deal more constraining (a topic to which we will return in a minute). Which is the correct approach? Who knows?
Suppose we arbitrarily select one interpretation -- say, option (d). Trying to fit it into the Lockean analytic quickly gives rise to three additional, related problems. First, the act of mixing labor with a piece of the commons does not, under any of the various extant intellectual-property regimes, work the way Locke supposed real-property law works. When one mixes one's physical labor with a plot of virgin land, one should acquire, Locke suggested, a natural right not merely to the wheat one produces but to the land itself. By contrast, when one mixes one's intellectual labor with an existing idea, one acquires a property right only to the "original" or "novel" material one has generated, not to the idea with which one began. Second, the set of entitlements one acquires do not have the kind of exclusivity Locke apparently attributed to real-property rights. For example, the issuance of a patent on a better mousetrap prevents others from making that mousetrap, but not from reading the patent and using the information contained therein to make a even better ("nonequivalent") mousetrap. The issuance of a copyright on a novel prevents others from copying it but not from reading it, discussing it, parodying it, etc. (Closely examined, real-property rights also lack the exclusivity Locke attributed to them, but the difficulty is more apparent in the case of property in ideas.) Finally, Locke suggested that the property rights one acquires through labor upon resources held in common do and should last forever -- i.e., are alienable, devisable, and inheritable indefinitely. Most intellectual-property rights, by contrast, sooner or later expire.
One might respond: but none of these observations indicate that the application of labor-desert theory to intellectual property is indeterminate; they indicate merely that intellectual-property law would have to be radically revised to conform to the Lockean scheme. Perhaps. But the scale of the necessary revision is daunting. Is it plausible -- on Lockean or any other premises -- that by working to express in distinctive form the idea that infidelity usually corrodes a marriage, one would acquire ownership of the idea itself? Is it plausible that, by registering the trademark "Nike," one could prevent others from using it in any way (including reproducing it in an essay on intellectual property)? If not, then what set of more limited entitlements would satisfy the obligation of the state to "determine" and "settle" natural property rights? Locke's argument contains few clues.
We have not exhausted, unfortunately, the difficulties associated with the "sufficiency" proviso. Some of the commentators who have sought to harness Locke's argument to intellectual property have seen little difficulty in the requirement that a laborer leave "as much and as good" for others. Justin Hughes, for example, emphasizes the myriad ways in which the expansion of the set of available ideas stimulated by intellectual property improves the lot of everyone -- either immediately or soon. Robert Nozick, as suggested above, sees the sufficiency proviso as somewhat more constraining, but has identified to his satisfaction a way of structuring patent law that avoids violating it. Wendy Gordon, by contrast, construes the proviso as a much more serious limitation on the scope of intellectual-property rights. Conferring monopoly privileges on the creators of intellectual products, she claims, can hurt more than help the public. Take the word "Olympics," for example. If the term did not exist, we would have contrived other ways to communicate the notion of periodic amateur international sports competitions untainted by ideology or warfare. But because the word does exist, we have become dependent on it. No other word -- or collection of words -- quite captures the idea. Consequently, if we now prohibit "unauthorized" uses of the word -- e.g., in connection with the "Gay Olympics" or on a T-shirt highlighting the hypocritical way in which the ideal has been applied in recent years -- we have left the public worse off than if the word never existed. Fidelity to the Lockean proviso (and to a more general "no-harm" principle that runs through Locke's work), Gordon insists, requires that we withhold property rights in situations such as these. Once again, a wide range of interpretations of an important component of Locke's theory are available, and no one member of the set seems plainly superior to the others.
We come, finally, to the well-known problem of proportionality. Nozick asks: if I pour my can of tomato juice into the ocean, do I own the ocean? Analogous questions abound in the field of intellectual property. If I invent a drug that prevents impotence, do I deserve to collect (for 20 years) the extraordinary amount of money that men throughout the world would pay for access to the drug? If I write a novel about a war between two space empires, may I legitimately demand compensation from people who wish to prepare motion-picture adaptations, write sequels, manufacture dolls based on my characters, or produce T-shirts emblazoned with bits of my dialogue? How far, in short, do my rights go? Locke give us little guidance.
Private property rights, argue personality theorists, should be recognized when (and only when) they would promote human flourishing by protecting or fostering fundamental human needs or interests. The first step in the application of this perspective to intellectual property is identification of the specific needs or interests one wishes to promote. As Jeremy Waldron has argued, a wide variety of interests might be deemed fundamental, each of which arguably could be advanced by a system of property rights:
Six of these ten arguments -- 1, 3, 4, 6, 7, 9 -- provide, at most, weak support for a system of intellectual-property rights. To the extent that intellectual-property rights have economic value and may be bought and sold, gained and lost, they may contribute to their owners' abilities to avoid guilt, become autonomous, engage in independent political action, etc. But those values could be promoted equally well by providing persons property interests in land or shares in private corporations. Nothing turns on the fact that the entitlements pertain to intellectual products.
Personhood-based justifications for intellectual-property rights thus must be found, if anywhere, in some combination of themes 2, 5, 8, and 10: the interests of privacy; individual self-realization; identity; and benevolence. But the writers who have sought to extract from those sources answers to specific questions have come to widely divergent conclusions. Some examples:
When an author has revealed her work to the world, does it nevertheless continue to fall within the zone of her "personhood" -- so that she may legitimately claim a right to restrict its further communication? Neil Netanel, relying on an exploration of the ideal of "autonomy," thinks yes. Lloyd Weinreb, reasoning that, "once the individual has communicated her expression publicly, it takes on a 'life of its own' and . . . its further communication does not involve her autonomous self," thinks no.
Assume the answer is to the previous question is yes. May the author alienate his right to control the copying of his work? Kant, reasoning that "an author's interest in deciding how and when to speak [is] an inalienable part of his personality," thought no; Hegel, reasoning that expressions of mental aptitudes (as opposed to the aptitudes themselves) were "external to the author and therefore freely alienable," thought yes.
Should an artist's investment of his self in a work of visual art (say, a painting or sculpture) prevent others from imitating his creation? Hegel thought no -- on the ground that the copy would be "essentially a product of the copyist's own mental and technical ability." Justin Hughes seems to take the opposite position.
Is the protection of trade secrets necessary to protect privacy interests? Edwin Hettinger thinks no -- on the ground that most trade secrets are owned by corporations, which do not have the "personal features privacy is intended to protect"; Lynn Sharp Paine, disagrees, arguing that the right to privacy includes the freedom to reveal information to a limited circle of friends or associates without fear that it will be exposed to the world -- a freedom that trade-secret law shields.
Is a celebrity's persona a sufficiently important repository of selfhood that other persons ought not be permitted to exploit that persona commercially without permission? Justin Hughes suggests yes, reasoning that "[a]s long as an individual identifies with his personal image, he will have a personality stake in that image." Michael Madow, insisting that the "creative (and autonomous) role of the media and the audience in the meaning-making process" are at least as important as the "personality" of the celebrity, sharply disagrees.
Two related problems underlie these and many other disagreements among personality theorists. First, the conception of the self -- the image of "personhood" that, through adjustments of intellectual-property doctrine, we are trying to nurture or protect -- is too abstract and thin to provide answers to many specific questions. Either a more fully articulated vision of human nature (that would forthrightly address such grand questions as the importance of creativity to the soul) or a conception of personhood tied more tightly to a particular culture and time seem necessary if we are to provide lawmakers guidance on the kinds of issue that beset them.
Second, no personality theorist has yet dealt adequately with what Margaret Radin calls the problem of fetishism. Which of the many tastes exhibited by current members of American culture should be indulged, and which should not? The quest for individuality? Nationalism? Nostalgia for a real or imagined ethnic or racial identity? The hope that audiences will treat one's creations with respect? The hunger for fifteen minutes (or more) of fame? Yearnings or orientations of all of these sorts are implicated by intellectual-property disputes. Deciding which merit our deference is essential to determining how those disputes should be resolved.
Return, now, to the case of The Rock and Roll Hall of Fame -- with which we began. Have your views on who should prevail in each of the three related disputes been altered at all by the foregoing discussion?
Here is how current American law would handle each dispute:
(a) The construction of a Rhythm & Blues Hall of Fame identical in shape to The Rock and Roll Hall of Fame would violate the copyright in the original building. (The question of who owns that copyright -- the architect or the museum -- would turn in part on the content of the contract under which the architectural work was done.) Before 1990, architectural works were not shielded by copyright law. Architectural plans were protected, but only in the narrow sense that they could not be copied without permission. If a builder lawfully obtained a set of blueprints for a building (or determined how to build it without blueprints), he was free to build an identical structure. A 1990 federal statute (prodded by the American ratification of the Berne Convention) extended copyright protection to "the design of a building as embodied in any tangible medium of expression" and made clear that the building itself constituted such a "medium of expression." The upshot is that, as long as a building contains original design elements that are not functionally required, its "overall shape" may not be imitated without permission. Admirers may photograph, draw, or paint the building (as long as it is "visible from a public place") but cannot build an identical structure or even (it seems) a scale model of it.
(b) The dispute between the Museum and Gentile is real. The Museum did not (and could not) rely upon copyright law, because section 120 of the statute mentioned in section (a), above, excuses "the making, distributing, or public display of pictures, paintings, photographs, or other pictorial representations of the work, if the building in which the work is embodied is located in or ordinarily visible from a public place." Trademark law, however, provided an alternative line of attack. The District Court found the Museum's claim persuasive and granted a preliminary injunction against continued sales of Gentile's poster, reasoning that the building design functioned as an indicator of the Musuem's product (i.e., as a trademark) and that Gentile's poster was crafted in way that would likely (i) mislead consumers into thinking that it was either produced or sponsored by the Museum or (ii) "dilute" the power of the Musuem's mark. A divided panel of the Sixth Circuit reversed. The opinion of the court [from which the quotations in the original "exercise" were taken] -- including the dissenting opinion of Chief Judge Martin -- are well worth reading. (The case is not over yet, and many organizations are watching closely its evolution.)
(c) The outcome of the dispute between the Museum and Acme is harder to predict. It is not clear, to begin with, that the safe haven for pictures, paintings, photographs, or other pictorial representations of the work, mentioned in section (b), above, would extend to three-dimensional models. If not, then Acme would be in trouble on copyright grounds. In addition, the Museum might well have a stronger trademark claim against Acme than against Gentile. That seems to be the view of the New York Stock Exchange, which (as Felix Kent explains) recently brought a trademark case against "the New York, New York Hotel and Casino (of Las Vegas) for building a one-third scale model of the Exchange's facade on the gambling floor."
The case -- New York Stock Exchange v. New York, New York Hotel and Casino No. 97 Civ. 2857, SDNY, filed April 21, 1997) -- has not yet been resolved.