Introduction to Intellectual Property - Berkeley Law
Introduction to Intellectual Property Prof Merges 1.11.10 Logistics Course website:
http://www.law.berkeley.edu/institutes/bclt/ students/2009_spring_intro_ip.htm Two Main Themes Today Philosophical foundations Comparative overview: Patent, copyright, trademark, trade
secret & other state law Philisophical Foundations Natural rights theory: John Locke Personhood theory: Hegel Utilitarian theory: Mill, Bentham, etc.
John Locke (1632-1704) Lockes 2 Treatise p. 2 nd the earth and all inferior creatures be common to all
men . . . What might this mean? Lockes Theory of Appropriation 1.Nature was created for all to share; it is a
common Where does labor enter into it? Whatsoever he removes out of the state that Nature hath provided and left it in, he hath mixed his labor with it, and joined
to it something that is his own . . . Lockes Theory of Appropriation 1. Nature was created for all to share; it is a common
2. We each own our body, and the labor it produces this labor being the unquestionable property of the laborer For Locke, it is fundamental that
these belong to the individual; no one has a superior or conflicting claim Each person is born free Jeremy Waldron, God, Locke and Equality
Waldrons Locke Fundamentally liberal: a balanced view of property Rejects the libertarian Locke
of the 1980s The is mixing idea and labor no man but he can have a right to what [his labor] is once joined to . . . Acorns and apples examples
Lockes Theory of Appropriation 1. Nature was created for all to share; it is a common 2. We each own our body, and the labor it produces
3. Mixing labor with the common yields a valid property claim Jeremy Waldron Lockes Theory of Appropriation 1. Nature was created for all to share; it is a
common 2. We each own our body, and the labor it produces 3. Mixing labor with the common yields a valid property claim
4. Subject to caveats and provisos; not an absolute claim The famous sufficiency proviso No man but he can have a right to what [his at least
where there is enough and as good left in common for others. labor] is once joined to, The same law of nature that does by this means give us property, does
also bound that property too. -- Second Treatise, 30; p. 3 Spoliation Proviso As much as anyone can make use of to any advantage of life
before it spoils, so much by his labor he may fix his property in . . . -- p 3 Lockes Charity Proviso 2nd Treatise, Paragraph 42:
title to so much out of anothers plenty as will keep him [or her] from extreme want 3 Lockean Provisos Sufficiency (as much and as good left over)
Spoliation Charity Labor is far from an absolute claim to title He that had as good left for his
improvement as was already taken up needed not complain, ought not to meddle with what was already improved by anothers labour; if he did it is clear he desired the benefit of anothers pains . . .
-- 2nd Treatise, 33 Wendy Gordon: IPs roots in restitution "Of Harms and Benefits: Torts, Restitution, and Intellectual Property,"
21 J. LEGAL STUDIES 449 (1992) also 34 McGeorge L. Rev. 533 (2003) Philisophical Foundations Natural rights theory: John Locke
Personhood theory: Hegel Utilitarian theory: Mill, Bentham, etc. Hegel, personhood and selfrealization Basic Hegelian concepts
Individual will Autonomy (freedom to choose and act) Simple version To become fully self-realized, an individual must be able to project his or
her will onto objects in the external world This requires a stable set of claims over those objects i.e., property rights Why appropriation? Permanency: ability to return to an object, work on it, refine it over
time Hegels chair Appropriation (contd) Control: maintain the object in the intended state; hold it
steady, to permanently affix the will to it Hegel and stages of development The will is ineffectual when trapped inside the individual
Projection of the will eg via property claims is an important step forward Merging of individual wills into a functional, other-regarding state is the end goal Labor vs. will Labor may be the result of conscious
choice But will is the part of us that does the choosing; it is more an integral part of who we are than labor which is more a quality or product JK Rowling
JK Rowling: Locke: she worked hard in drawing from a long tradition of wizard and coming of age tales, and so deserves copyright in her Harry Potter books Hegel: The writing of these books literally
helped make her who she is, or helped her more fully realize who she really is Dignity Interest of Creators Kant
Hegel Utilitarian Perspective Jeremy Bentham (1748-1832)
By the principle of utility is meant that principle which approves or disapproves of every action whatsoever, according to the tendency which it appears to have to augment or diminish the
happiness of the party whose interest is in question: or, what is the same thing in other words, to promote or to oppose that happiness."
Utilitarian moral philosophy or ethics can be simply described as "the art of directing men's action to the production of the greatest possible quantity of happiness, on the part of those whose interest is in view."
John Stuart Mill Mill argues that the moral worth of actions is to be judged in terms of the consequences of those actions. In this he
contrasts his own view with that of those who appealed to moral intuitions. The utilitarian perspective The greatest good for the greatest number
Rights follow only from calculations of collective welfare Natural rights are bullshit on stilts Jeremy Bentham Landes and Posner
Breyer, The Uneasy Case for Copyright, 84 HLR 281 (1970) Example Landes, W., and R. A. Posner, "Indefinitely
renewable copyright." 70 University of Chicago Law Review 471 (2003). System-wide, structural approach
Most commonly associated with utilitarianism BUT not limited to that approach Rawls and Institutional Justice Applying the various theories to IP
Law Normative foundations are important in a time of rapid change John Perry Barlow
Barlow Information wants to be free . . . Larry Lessig
Lessig, Free Culture The technology that preserved the balance of our history between uses of our culture that were free and uses of our culture that were only upon permission has been
undone. The consequence is that we are less and less a free culture, more and more a permission culture. I would dispute some aspects of this empirically Enforcement costs create de facto
legality in many areas on the Internet Widespread and easy waiver of rights is an important feature of the internet environment Nolo Press, 2004 (464 Pages)
Merges, Justifying Intellectual Property (Harvard U Press 2010)
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