Introduction to Intellectual
Property
Prof Merges
1.9.12
Logistics
Course website:
http://www.law.berkeley.edu/institutes/bclt/st
udents/2012 - Intro to IP Spring 2012
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)
Locke’s 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 . . .”
Locke’s 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
Waldron’s Locke
• Fundamentally
liberal: a balanced
view of property
• Rejects the
“libertarian
Locke” of the
1980s
Locke’s 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
Locke’s 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
Locke’s “Charity” Proviso
• 2nd Treatise, Paragraph 42:
–“title to so much out of another’s
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 another’s labour; if he
did it is clear he desired the benefit of
another’s pains . . .”
-- 2nd Treatise, ¶ 33
Wendy Gordon: IP’s 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
• Hegel’s chair
Appropriation (cont’d)
• 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; Tons of
voluntary “free culture”
Nolo Press, 2004 (464 Pages)
But to the extent Lessig is correct .
..
• Permissions, and the costs of obtaining them,
are simply a consequence of recognizing
property rights
• The price we pay for obtaining the benefits of
individual creation and control of indivial
creative works