In Defence of Deontological Justifications of Intellectual Property

Abstract

Intellectual property (IP) theories generally fall into two broad categories: consequentialist and deontological. The consequentialist, or utilitarian, theories justify IP based on the social welfare it produces. They argue, for example, that IP encourages innovation. The deontological theories, by contrast, justify IP on the basis that creators have a right to their creations, because for example, they have a right to the fruits of their labour. In his paper “Faith-Based Intellectual Property”, Professor Mark Lemley argues that the deontological theories are irrational because they are based on faith rather than evidence. Lemley’s point is not simply that the deontological theories are wrong but that they are outside the realm of rational discourse and reasonable disagreement. As he puts it, he and the deontologists “have nothing to say to each other. I don’t mean by that that I am giving up on you, deciding that you’re not worth my time to persuade. Rather, I mean that we simply cannot speak the same language.” Lemley is not making an argument against the deontological theories as part of an ongoing debate about justifying IP; he is rather saying that the deontological theories should not even be part of the debate. Lemley’s argument can be interpreted in two ways. I will argue that on one interpretation the argument commits an informal fallacy, while on the other interpretation it is based on the false premise that arguments have to be grounded in evidence to be rational. In either case, Lemley fails to establish that the deontological theories are outside the realm of rational discourse.