Intellectual Property Law and the Promotion of Welfare
Forthcoming in Research Handbook on the Economics of Intellectual Property Law (Vol. I -- Theory) Ben Depoorter & Peter Menell, eds. (Edward Elgar Publishing)
26 Pages Posted: 26 Jan 2017
Date Written: January 25, 2017
The U.S. Constitution grants Congress the power “to Promote the Progress of Science and the Useful Arts” by granting copyrights and patents to authors and inventors. Most courts and scholars understand this language to entail a utilitarian or consequentialist approach to intellectual property (IP) law. Unlike IP systems in other parts of the world, U.S. IP law generally eschews so-called “moral” or deontological considerations such as justice and fairness. Yet while there is considerable consensus regarding U.S. IP law’s philosophical orientation, there has been little discussion of its deeper normative goals. Most courts and scholars agree with the idea that IP law should provide incentives to creators, but there has been almost no analysis of why creativity and innovation are good. What, exactly, are the interests that IP law should promote? Various answers to these questions exist. One possibility would be to interpret the constitutional language literally and narrowly. On this view, IP law should encourage developments in knowledge and technology irrespective of broader interests. Another option would be to interpret the constitutional language broadly to encompass a general social welfare calculus. In this chapter we discuss a variety of ways of understanding the normative goals of a consequentialist IP regime. We argue that the best approach derives from recent work in the field of hedonic psychology. The principal consequentialist goal of IP law should be to maximize social welfare, where welfare is understood as subjective well-being. We do not argue that IP law cannot have other interests beyond consequentialism; there may be room for deontological considerations such as fairness and justice as well. But where IP law is motivated by welfare considerations, it should be structured to maximize individuals’ happiness. In support of this objective, we offer some suggestions for how a happiness-based IP regime might differ from the status quo.
Keywords: Intellectual Property, Copyright, Patent, Welfare, Happiness, Preferences, Objective Theories, Consequentialism, Deontology, Drugs, Electronics
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