what is property?
a system of rights and duties among people with respect to physical things
land, chattel.... whales
but outside the realm of physical things, what are those rights and duties?
skills, talents, abilities, thoughts, ideas, processes
interconnecting concepts between physical things and broad ideas
why apply property-like rules to non-physical things?
- title prevents disputes:
how does giving property rights avoid disputes?
- encourage economic development
- freeriding:
how can property rights can avoid this? the right to exclude
- trust and reliance
- endowment effect/ psychological effect
*
moral arguments to IP
john locke - treatises on gov't
every man has a porperty in his own person.... the labour of his body and the work of his hadns, we may say, are properly his." if i have a right to myself as a person, i have a right to my work and labor, my physical person (
state of nature, in which everything is owned by all but me because i belong to me. my work creates exclusion, and my exclusion gives moral value to the physical and non-physical communal things that i work upon...)
*"this labour being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good left in common for others."
* personhood arguments: romanticized view -- like goethe's werther... personhood that the individual's struggle becomes fungible and has value
peggy radin, property and the personhood
- to achieve proper self-development to be a person - an individual needs some control over resources in the external environment... the person becomes a real self only by engaging in a property relationship with something external. such a relationship is the goal if the person.
- one may gauge the strength or significance of someone's relationship with an object by the kind of pain that would be occasioned by its loss... not all object-loss is equally important. some objects may approach
the fungible end of the continuum so that the justification for protecting them as specially related to the persons disappears... a few objects may be so close to the personal end of the continuum that no compensation could be just."
our personhood would be a good reason to create/enforce rights. but the interests vary across the scope of things. and varies across the scope of people.
* utilitarian/economic efficiency arguments
thomas jefferson to issac mcpherson letter
"if nature has made any one thing less susceptible than all others of exclusive property,
it is the action of the thinking power called an idea, which an individual may
exclusively possess as long as he keeps it to himself; but the moment it is divulged,
it forces itself into
the possession of every one, and the receiver cannot dispossess
himself of it. Its peculiar character, too, is that no one possesses
the less, because every other possesses the whole of it."
"Inventions then cannot, in nature, be a subject of property. Society
may give an exclusive right to the profits arising from them, as an
encouragement to men to pursue ideas which may produce utility, but
this may or may not be done, according to the will and convenience of
the society, without claim or complaint from any body... other nations have thought
that these monopolies produce more embarrassment than advantage to
society; and it may be observed that the nations which refuse
monopolies of invention, are as fruitful as England in new and useful
devices."
even though an idea, by its very nature, once devuldged can't be excluded, we'll pretend that it is and that if someone barges in on your idea, you have a right against them... jefferson says "no way," based on locke. does the emotional investment in your idea give you a right to it? should it?
n.b. -- this letter has a big influence on the const. art. I s. 8
there are two paragraphs.
- to regulate commerce with foreign nations, and among the several states, and withthe indian tribes... (and)
- to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries...
this is the util arguement to IP: it's like taking something that is
the trade mark cases:
"the ordinary trade-mark has no necessary relation to invention or discovery... it is often the result of accident rather than design.. but in neither case does it depend upon novelty, invention, discovery, or any work of the brain. it requires no fancy or imagination, no genius, no laborious thought. it is simply founded on priority of appropriation."
the market for lemons by george akerlof
the seller should put his reputation on the line... that's essentially what a
trademark does, puts a sign on your product that says "you can trust me and if something happens you know who to blame"
alternatives to property rights
if not following intellectual property, how else might we ensure that we have an adequate level of innovation in our society? give a salary upfront, prizes, support each other as a community... the problem with this is that the government or private parties get to control the value of something, instead of the market valuating something
how else might we ensure the integrity of the information in our markets?
how else might we promote the self-development of personhood through engagement with ideas?
how else might we satisfy the moral claims of intellectual labor?
recap:
philo grounds for IP
moral rights - locke
personhood - radin
monopoly itself can be a hinderance to the exchange of ideas
trademarks aren't the same as copyrights and patents.
the justification isn't creating and protecting, but instead
for giving an incentive to create high quality products
with the understanding that they get the benefit of the
trademark because it identifies their quality and gives
consumers information. market integrity lowers search
costs, while improving quality.
alternatives to IP rights such as prizes, acknowledgement,
etc. in our country, propertizing intellectual products is how
we determine to best protect them.
four categories of doctrines of the course:
trade secrets
patents
copyrights
trademarks
