Intellectual Property and Coerced Exchanges

Abstract

The increasing significance of information in world economy has raised importance of issues related to intellectual property. It also has resulted in rapid development of intellectual property law. While some work on philosophical foundations of intellectual property has been done, field remains relatively fertile. The most obvious setting within which to justify intellectual property is in context of justifying property in general. However, full justification for intellectual property must also include an examination of kind of commodities in question. That is, what justifies intellectual property must not only reference what justifies ownership, but it also must outline sorts of things that can or should be considered property. Finally, understanding what rightly might be considered property must take into consideration circumstances of exchange in order to establish a fully moral regime for intellectual property.This paper raises a number of considerations important to each stage of justification of intellectual property. It first outlines two traditions for justifying property, utilitarianism and liberal-libertarian tradition, and it raises questions for both. Second, it examines a category of commodities that Margaret Jane Radin labels commodities.1 These are commodities that many believe are not or should not be fully included within a free market property regime, and which, by their nature or by our views of them, resist complete commodification. Examples of contested commodities are people-particularly babies-sex, reproductive capacity, labor, body parts, and, I will argue, ideas.Finally, regardless of whether or not a commodity is contested, circumstances of exchange must be considered when thinking about shape or extent of property rights. Combined, moral significance of circumstances of exchange and extent to which commodity is contested illuminate practical morality of property regimes and place of intellectual property in them. This paper's conclusion is that although intellectual property is not as contested as life and body parts, it is at least as contested as basic liberties and labor. Consequently, prevailing circumstances in control and exchange of intellectual property make existing property regime either unjustified or difficult to justify.The positive arguments appearing in this paper have an affinity with views of Kant, Hegel, and Radin. All three of these authors base their justification of right to property on concept of personhood.2 Their views do not fit neatly into two moral traditions examined in first part of paper. So paper will, along way, outline this third tradition.Two Traditions Justifying PropertyPerhaps first way in which people think about justifying intellectual property is based on desert. People quickly assume that inventors should receive whatever benefits accrue from their inventions. It is only after recognizing that most inventions are embodiments of ideas-and that ideas are rather peculiar objects-that people begin to question simple notion of desert. For example, ideas are not created in a vacuum and so no one is solely responsible for them. Hence, no one alone should own or control benefits proceeding from idea. To overcome this particular problem, many people either reject (or mitigate) rights of the or they seek to justify rights of inventor with a utilitarian argument.The utilitarian justification of property was prefigured by Hume3 and later, a full formulation came from Bentham.4 This strand of thinking has lasted to present.5 Roughly put, utilitarian justification of intellectual property maintains that authors and inventors must be granted intellectual property rights and must expect to receive benefits of bringing their work to market so that society might benefit from new ideas and products based on them. …