What Can Intellectual Property Law Learn from Happiness Research?

in G. Dinwoodie (ed.), Methods and Perspectives in Intellectual Property, Elgar Publishing, Forthcoming

17 Pages Posted: 11 Jun 2013

See all articles by Estelle Derclaye

Estelle Derclaye

University of Nottingham, School of law

Date Written: August 1, 2012


As the description of the 2012 ATRIP congress’s theme highlights, traditionally, scholars have used historical, doctrinal or comparative analyses, law and economics, political economy or philosophy, to discuss intellectual property law. Other methods such as empirical analysis, international relations, and human development are more recent. This paper looks at intellectual property law in a new way namely through the angle of happiness or well-being research.

The field of happiness research is not that recent but strangely, so far, happiness researchers have hardly discussed the relationship between well-being and technology despite the pervasive role of the latter in contemporary society. Likewise, the discussion of happiness is also rare in the legal field (except of course in (mental) health law) and it is absent from intellectual property law , except indirectly through the discussion of the capability approach in the discourse on intellectual property and development. I consciously leave the capability approach for another article but it needs to be noted that there are parallels to be drawn between the application of happiness research on the one hand and the capability approach on the other hand, to intellectual property law. In effect, the two approaches converge or are complementary in many respects.

There is a debate to be had about the value of happiness research for the field of intellectual property law. The discussion is worth having especially to check whether the current basis of intellectual property rights (IPR), and the norms that derive from it, are still up-to-date or else should be revised. This article focuses on the application of happiness research to patents and related rights, by and large designs, utility models and plant variety rights. However, a broader reflection of the relationship between happiness or well-being and other IPR such as copyright and trademarks, is worth pursuing as well. This article is obviously concerned only with one way to increase happiness, namely through the fostering of technology using the intellectual property system. There are many other ways to increase happiness, for instance to promote positive traits in a person, and this often does not need any technology. As Frey says, “[i]n current happiness research, [...] the integration among disciplines often go so far that it is not possible to identify whether a particular contribution is due to an economist, a psychologist, a sociologist or a political scientist.” In addition, many of their findings and recommendations coincide. Therefore, the paper will amalgamate the recommendations of the researchers in each branch (law, economics, political sciences, psychology, sociology and philosophy), only highlighting differences of opinion between the branches if and when they exist.

The article first traces the origin and history of happiness research, it then defines happiness (section 2) and summarises the findings (section 3) and the recommendations (section 5) of happiness research, after having determined that policy-makers should take happiness research into account (section 4). Finally, section 6 explains the relevance of happiness research to intellectual property law and draws from happiness research findings to propose a recalibration of patents and related rights’ goals and substantive law.

Keywords: happiness, intellectual property, patents, well-being

Suggested Citation

Derclaye, Estelle, What Can Intellectual Property Law Learn from Happiness Research? (August 1, 2012). in G. Dinwoodie (ed.), Methods and Perspectives in Intellectual Property, Elgar Publishing, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2277160

Estelle Derclaye (Contact Author)

University of Nottingham, School of law ( email )

Nottingham NG7 2RD
United Kingdom

HOME PAGE: http://www.nottingham.ac.uk/law2/staff/estelle.derclaye

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