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Intellectual Property and Practical Reason

33 Pages Posted: 2 May 2016 Last revised: 28 Sep 2017

Eric R. Claeys

George Mason University

Date Written: February 13, 2017

Abstract

In scholarship on intellectual property (‘IP’), philosophical justifications for IP rights seem to suffer from one of two flaws. To some, philosophical justifications are too indeterminate to offer concrete guidance about rights in practice. To others, philosophical justifications seem extreme; they mandate certain conclusions without letting decision makers consider the relevant context or consequences of different IP rights. Both impressions neglect an important dimension of moral reasoning about rights — practical reason. In perfectionist theories of law, ‘practical reason’ describes the principles by which general justifications for moral rights are implemented in specific decisions in law and ethics. This Article introduces practical reason to IP scholarship, and shows how it facilitates reasoning about the context of different IP rights. The Article shows how principles of practical reason might apply to patent’s novelty requirement, copyright’s originality requirement, copyright’s idea-expression distinction, and the duration requirements for various forms of intellectual property.

Keywords: specification, determination, Rawls, Locke, capabilities, Finnis, eudaemonist, flourishing

JEL Classification: K11, K31, 034

Suggested Citation

Claeys, Eric R., Intellectual Property and Practical Reason (February 13, 2017). Jurisprudence, Forthcoming; George Mason Legal Studies Research Paper No. LS 17-12. Available at SSRN: https://ssrn.com/abstract=2773643

Eric R. Claeys (Contact Author)

George Mason University ( email )

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