Intellectual Property, Independent Creation, and the Lockean Commons
27 Pages Posted: 13 Feb 2019 Last revised: 9 Mar 2019
Date Written: February 2, 2019
Copyright and patent law – which grant exclusive rights in two very different kinds of subject matter, but are nonetheless lumped together as “intellectual property” – are almost universally regarded by U.S. scholars as having the same theoretical underpinnings. This manifests in doctrine, as courts have ruled in a number of ways aiming to unify the two areas of law. Just one example of this tendency to theoretically unify copyright and patent law is Seana Shiffrin’s paper “Lockean Arguments for Private Intellectual Property”, which argues against Lockean understandings of intellectual property. But this paper argues that Shiffrin’s challenge is successful in the context of patent law, but not in the context of copyright, due to significant doctrinal differences between the two; and it thereby demonstrates for the first time that this general and widespread tendency of scholars to assume that copyright and patent are theoretically unified is fundamentally misguided and leading us astray. The paper then outlines general normative questions raised by these differences between copyrights and patents, as well as significant and revisionary doctrinal implications that would result if copyright and patent law are shown to have distinct normative foundations. The paper thus demonstrates that these questions of theory must be approached with much more care than they presently are, with an eye to the differences between copyrights and patents rather than the allure of theoretical unity, if we are to have any shot at getting the laws right.
Keywords: intellectual property, copyright, patent, legal theory, legal philosophy, jurisprudence, locke, property, property theory, moral philosophy, political philosophy
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