Capabilities, Spillovers, and Intellectual Progress: Toward a Human Flourishing Theory for Intellectual Property
38 Pages Posted: 31 Jan 2018
Date Written: December 30, 2017
Courts, commentators, and even casebooks mistakenly assume that intellectual property laws are fundamentally utilitarian and thus the relevant objective for intellectual property laws is maximizing social welfare. Economic theories of intellectual property dominate while rights-based theories and other alternatives struggle to remain relevant in the discourse. This essay accepts that intellectual property laws are consequentialist, but it mounts a challenge to the utilitarian theories that dominate. Following the path set by Amartya Sen in the area of development economics and borrowing heavily from the Sen’s analytical and normative framework — the Capabilities Approach, this essay begins to develop a human flourishing theory for intellectual property.
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