Fisher, WilliamTheories of Intellectual Property 2001
New Essays in the Legal and Political Theory of Property Cambridge University Press

Fisher outlines four main theoretical approaches to IP (in order of popularity):

(1) The Utilitarian Approach

This approach “employs the familiar utilitarian guideline that lawmakers’ beacon when shaping property rights should be the maximization of net social welfare. Pursuit of that end in the context of intellectual property, it is generally thought, requires lawmakers to strike an optimal balance between, on one hand, the power of exclusive rights to stimulate the creation of inventions and works of art and, on the other, the partially offsetting tendency of such rights to curtail widespread public enjoyment of those creations.” (page 2)

(2) The Lockean Approach (or Labour Theory)

This approach centres on the proposition that “a person who labors upon resources that are either unowned or “held in common” has a natural property right to the fruits of his or her efforts – and that the state has a duty to respect and enforce that natural right.” (page 4)

(3) Personality Theory

This theory derives loosely from the writings of Kant and Hegel. Its premise is that private property rights are crucial to the satisfaction of some fundamental human needs and that policymakers should strive to allocate entitlements to resources that best enables people to fulfill those needs. IPRs may therefore be justified because they shield from appropriation or modification artifacts in which authors have expressed their wills and/or because they create economic and social conditions conducive to creativity, which is important to human flourishing (pages 5-6)

Under this theory falls support for notions of “moral rights” and other similar rights (pages 9-10)

(4) Social Planning Theory

This theory suggests that IPRs should be shaped to help foster the achievement of a just and attractive culture. (page 6)

“Social-planning arguments also figure prominently in current debates concerning the appropriate scope of intellectual-property rights on the Internet.” (page 10)

Fisher notes that in legislative and judicial materials, arguments reflecting these four theories are typically blended. However, contemporary theoretical writings will usually separate and juxtapose these theories. Proponents of the four theories will usually present their arguments as guides that legislators and judges can use in modifying or extending legal doctrines in response to new technologies and circumstances. However, Fisher argues that these theories have all proved to be less helpful in practice than their proponents claim (page 13).

The weaknesses in each approach -

(1) Utilitarianism

One of the first tasks in developing a utilitarian theory of IP is translating the idea of the “greatest good for the greatest number” into a more precise and administrable standard (page 13). Most contemporary writers select for this purpose either the “wealth-maximisation” criterion or the “Kaldor-Hicks” criterion. These criteria can be applied to IP law in three ways:

  • incentive theory
  • optimising patterns of productivity
  • rivalrous invention – this approach has the objective to eliminating or reducing the tendency of IPRs to foster duplicative or uncoordinated inventive activity.

In relation to [1] incentive theory, there are problems with the lack of data about to what extent IPRs incentivise creative production.

In relation to [2], Fisher refers to arguments first espoused by Harold Demsetz that the IP system has the role of signalling to potential producers of intellectual products what consumers want (the signals are usually sales and licences). This has led to arguments that IP protection should be expanded into “every corner in which people derive enjoyment and value from literary and artistic works” (quoting Paul Goldstein). Fisher responds: “In virtually no field of economic activity are innovators empowered to collect the full social value of their innovations. The elementary schoolteacher who develops a new technique for teaching mathematics, the civil-rights activist who discovers a way to reduce racial tension, the physicist who finds a way to integrate our understandings of gravity and quantum mechanics – all of these confer on society benefits that vastly exceed the innovators' incomes. Enlarging the entitlements of intellectual-property owners thus might refine the signals sent to the creators of different sorts of fiction, movies, and software concerning consumers' preferences, but would lead to even more serious overinvestment in intellectual products as opposed to such things as education, community activism, and primary research.” (pages 18-19)

In relation to [3], Fisher points out that the most serious difficult arises from the fact that reducing social waste at one stage of the inventive process commonly increases it at another (e.g. the race to patent an invention, or build improvements on a patented invention)

(2) Labour Theory

Fishers starts from the premise “Why exactly should labor upon a resource held “in common” entitle the laborer to a property right in the resource itself?” He addresses various arguments made for this entitlement, noting that their application to IP (rather than traditional property) is problematic, and that there is no way of ascertaining Locke's original intent as to the scope of his theory. Fisher then notes the difficulties in determining what is “intellectual labor” and what comprises “the commons” for the purposes of applying this theory to the field of intellectual property. Additionally, there are questions surrounding proportionality (“Nozick asks: If I pour my can of tomato juice into the ocean, do I own the ocean?”) and Locke's “sufficiency” proviso to his general statement, being that a labourer should leave “as much and as good” for others.

(3) Personality Theory

Personality theorists argue that private property rights should be recognised when they promote human flourishing by protecting of fostering fundamental human needs or interests. The problem here lies in identifying (and agreeing upon) the specific needs or interests that we wish to promote. To what extent does an IP system promote these needs and interests?

Fisher writes: “Two related problems underlie these and many other disagreements. First, the conceptions of the self – the images of “personhood” that, through adjustments of intellectual-property doctrine, we are trying to nurture or protect – that underlie most avatars of personality theory are 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 seems necessary if we are to provide lawmakers guidance on the kinds of issue that beset them.” (page 32)

(4) Social Planning Theory

This theory requires formulating a vision of a just and attractive culture. As Fisher states, “What sort of society should we try, through adjustments of copyright, patent, and trademark law, to promote? The possibilities are endless” (page 33).

Fisher offers his own (condensed) sketch of an attractive intellectual culture as being one that includes (at pages 33-35):

  • Consumer welfare (we should seek a combination of IP rules that maximise consumer welfare by optimally balancing incentives for creativity with incentives for dissemination and use)
  • A cornucopia of information and ideas (citizens should have access to a wide and varied array of information, ideas and forms of entertainment)
  • A rich artistic tradition (the more complex and resonant the shared language of a culture, the more opportunities it affords its members for creativity and subtlety in communication and thought)
  • Distributive justice (to the greatest extent practicable, all persons should have access to all informational and artistic resources)
  • Semiotic democracy (in an attractive society, all persons would be able to participate in the process of making cultural meaning)
  • Sociability
    • Respect

Conclusions

Notwithstanding the difficulties associated with the four theories above, Fisher notes the value that can be offered by these theories:

“The indeterminacy of the personality and social-planning perspectives has long been recognized. That recognition is reflected, for example, in the common accusation that those perspectives are “illiberal” insofar as they seek to regulate persons' behavior on the basis of necessarily controversial “theories of the good” – the sort of thing that governments ought not do. A closely related, equally common charge is that the social- planning and personhood perspectives are “paternalistic” insofar as they curtail persons' freedom on the basis of conceptions of what is “good for them” with which they themselves may not agree. By contrast, the utilitarian and labor-desert approaches, especially the former, have enjoyed an aura of neutrality, objectivity, and above all determinacy. That aura helps to explain why courts, when presented with difficult problems of statutory interpretation, have sought guidance most often from economic arguments and least often from social-planning arguments. One of the burdens of this essay has been to disrupt that pattern – to show that the prescriptive powers of all four arguments are sharply limited.

That conclusion, however, does not imply that the theories have no practical use. In two respects, I suggest, they retain considerable value. First, while they have failed to make good on their promises to provide comprehensive prescriptions concerning the ideal shape of intellectual-property law, they can help identify nonobvious attractive resolutions of particular problems. Second, they can foster valuable conversations among the various participants in the lawmaking process.” (pages 36-37) <note warning>

Only this summary is licensed under the CC Attribution-Noncommercial-Share Alike 3.0 Unported licence. Quotes taken from the original work are not licensed under the CC licence. Copyright in the original work is not affected by the inclusion of this summary here</note>

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