What Intellectual Property Can Learn from Informational Privacy, and Vice Versa

23 Pages Posted: 23 Sep 2016 Last revised: 13 Feb 2017

See all articles by Diana Liebenau

Diana Liebenau

Ludwig Maximilian University of Munich, Faculty of Law

Date Written: September 22, 2016

Abstract

On the one hand, we resort to intellectual property (IP) theory to justify a certain IP right or calibrate how a specific IP rule should be. Most commonly, we differentiate between three main theories: personhood, labor, and welfare, occasionally supplemented by interdisciplinary approaches. Some scholars portray these theories as categorically different; the traditional fault line runs between European-style deontological justifications based on Hegelian personhood or Lockean labor theories, and US-style utilitarian welfare theory. Others perceive their overall prescriptive power as limited.

On the other hand, privacy law is also governed by theories defining, justifying and calibrating it. However, the theoretical backdrop is much more disaggregate: descriptive taxonomies compete with normative theories, of which no single classification appears to be universally accepted. In this Note, we will distinguish between three widely recognized theories of informational privacy which conceptualize privacy as control, limited access, and contextual integrity, respectively.

But are there theories to analyze both IP and privacy? Intuitively, scholars have made a variety of arguments based on a structural parallelism of privacy and IP. Scholarship has also carefully dissected situations with converging or conflicting interests between IP and privacy. But these accounts are selective and do not rely on a common theory. Another line of scholarship uses the theories of IP in order to argue in favor of a property-style right in privacy interests. Apart from that, very few theoretical accounts use theories of IP address the privacy implications of IP.

In contrast, this Note takes another path by proposing to apply to IP the three commonly accepted theories of privacy — control, limited access, and contextual integrity. Both IP and privacy law regulate the flow of information, and thus control thereof, access thereto, and context therein. To be sure, these theories on the flow of information do not “justify” IP. However, through this theoretically informed prism of structural parallelism of privacy and IP some murky policy questions become clearer, so that IP can draw lessons from online privacy, and conversely, online privacy can learn from IP.

Keywords: IP Theory, Privacy Theory, Privacy as Control, Privacy as Access, Privacy as Contextual Integrity, Nissenbaum, Scarcity, Property, Public Domain, Trade Secrets, Social Norms

JEL Classification: O3, K11, D8

Suggested Citation

Liebenau, Diana, What Intellectual Property Can Learn from Informational Privacy, and Vice Versa (September 22, 2016). Harvard Journal of Law and Technology, Vol. 30, No. 1, Fall 2016. Available at SSRN: https://ssrn.com/abstract=2842447

Diana Liebenau (Contact Author)

Ludwig Maximilian University of Munich, Faculty of Law ( email )

Veterinarstr. 5
Munich
Germany

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