Why Intellectual Property?: Rationales and Critiques of IP Law


Course Code:
LAW 517
Law Honors/Pass/Restrd Cr/Fail


Why do societies decide to grant special legal protection to various types of creative works? A number of answers have been given over the years. Some are utilitarian: we grant these rights because doing so maximizes social welfare. Some are deontological: we grant rights because this is morally required in a just society. We will examine these various justifications, as well as variants on them. We will also ask how a society, having decided to grant some version of IP rights, ought best structure them. Should they be true property rights, with all or most of the powers this implies (creator control over uses, right to compensation from exploitation, etc.), or something else? Would a state-backed reward system work better, so that compensation is divorced from individual control? Should compensation for successful creators be limited or capped, as part of a wider attempt to moderate the distributional impacts of granting individual property rights; or must we tolerate ¿big winners¿ as an inducement or symbolic reward for other creators? We will address these and related questions by reading two sets of materials: (1) classic treatments of property rights (Locke, Kant, etc.) and social justice (Rawls); and (2) material from the contemporary literature on IP theory. We may also host some of the most interesting scholars working in the field of IP theory today, to come and explain their thinking and their work.

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