Intellectual Property, Innovation, and Social Progress: The Case Against Incentive Based Arguments
The Hamline Law Review, Vol. 26, pp. 602-630, 2003
29 Pages Posted: 18 Dec 2011
Date Written: December, 15 2011
After a brief introduction to the subject matter of intellectual property, an internal and external critique of Anglo-American systems of intellectual property protection will be offered.9 Internally, it will be argued that incentive-based social progress justifications for intellectual property fail – alas, if we are to conduct a cost benefit analysis it appears that a different model or a different set of rights would be better than our current system.10 Social progress incentive-based arguments do not justify current copyright, patent, and trade secret models of intellectual property protection. Moreover, even if these arguments could be modified, they would seem to require allowances for multiple patents for the “same” intangible work, not patent monopolies. Externally, it will be argued that consequentialism – more specifically, rule-utilitarianism – is beset with numerous seemingly insurmountable difficulties and cannot provide an adequate foundation for intellectual property. If the internal or external arguments succeed, then we will have to either find a different justification or abandon systems of intellectual property protection altogether.
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