The last century has seen a considerable expansion in the intellectual property regimes and it is likely that this expansion will only continue. The growing importance of intangible assets in the industrialized world; the development of new technologies for the exploitation of those assets; trade-based pressure for the regional and international harmonization of intellectual property regulation: all these tend towards the strengthening of the existing intellectual property regimes and the introduction of new ones.
As this pressure for the development of the intellectual property system grows, it will be essential to remember the purposes that intellectual property systems might appropriately serve. Of course, no single justification can be offered for all, or even one, of the intellectual property systems. Individually, the usual justifications are fraught with difficulty. Collectively, they operate to serve a complex variety of ends. The current regimes are the product of historical exigency. But in describing the purposes of intellectual property law in this chapter, I am not making a historical claim. My focus is not on history, but on the best account that can be given of an existing set of rules, on tools for explaining them and guiding their development. Some assert that this exercise is fruitless at best. At worst it may ‘limit what we imagine as possible’, by suggesting that ‘intellectual property law is timeless, natural and inevitable, and that it is driven by principle’, blinding us to the challenges that the law now faces and that might require ‘new narratives’.1 However, given that intellectual property law affects ‘what [people] may do, how they may speak, and how they may earn a living’,2 good government requires that it should it operate in as principled and coherent a way as possible. We must certainly recognize the limits of the received justifications: but justification should be found for the State to lend its aid to the intellectual property owner.
This chapter has a threefold structure. It is organized around the actors upon whom the various justifications for intellectual property focus. Arguments focusing upon the creator and her claim to her work are considered first. Arguments focusing upon the unauthorized user of a work and the purported wrongfulness of her behaviour are dealt with second. Arguments focusing upon the community in which the creator operates and its need for a steady supply of intangible assets are dealt with in a third and final section. The first of these two types of argument are often called ‘ethical’ arguments, and the third are often called ‘economic’ arguments. These labels can be misleading, however, if they suggest that these are essentially different types of arguments that cannot be compared. This is clearly not the case. Each of the arguments outlined in this chapter offers a reason for the law to take one shape or another and rational law-making involves weighing those various reasons.
Inevitably, the discussion of this chapter is cast at a relatively high level of generality. This has four consequences. First, the important issue of when rights against imitation and rights against independent invention are justified is largely excluded. The economics of this question are discussed in relation to patents in Chapter 4. But the way in which it might be approached on the basis of each of the creator-centred and user-centred justifications is a complex issue that would unduly complicate our discussion.
Second, the question of whether these arguments would justify protection of intangibles other than those already protected by the intellectual property regimes is also essentially excluded. We shall see, for example, that arguments concerning the embodiment of the personality of an author are often used to justify giving her the control over her work afforded by the law of copyright or moral rights (though we shall see that it is far from clear what such arguments might mean). But if authors may be said to embody their personality in their works, and to do so such that their control over the work should extend beyond the transfer of any individual copy of it as a limitation on how the owner of that copy may deal with her property, similar arguments may be made about other types of intangible. Do not we all invest our personalities in the décor of our homes? Yet no-one has proposed an entitlement to prevent subsequent owners from altering that décor equivalent to a sculptor’s entitlement under the moral right of integrity to prevent subsequent owners of her sculpture from altering it. Questions concerning what might be regarded as the over-reach of some of these arguments are essentially excluded from our discussion.
Third, many of the justifications for intellectual property rights considered in this chapter seem to assume that a natural person, who is the creator of the relevant subject matter, will also be the person in whom the rights first vest. However, many intellectual property rights first vest, not in natural persons, but in legal persons, in corporations. This is because of rules that allocate the ownership of subject matter created by employees to their employer. This is obviously most problematic for the creator-centred and user-centred justifications of intellectual property. As for the community-centred justifications, it is a corporation that must often be given incentive to invest in the creation, dissemination, and efficient exploitation of intangible assets. This is essentially the justification for employer ownership of intellectual property rights. However, we shall assume here without detailed consideration that even the creator-centred and user-centred justifications might sometimes apply to corporations. Jurists have long struggled with the question of corporate rights. One possible approach is to suggest that the rights of corporations are derived from, but not reducible to, the rights of the individuals that constitute them (just as corporate action is constituted by, though not reducible to, the actions of individuals).3 In this way it might be possible to speak of corporations as having the rights entailed in the creator-centred and user-centred justifications in a way derived from the rights of the individuals that constitute them.
Fourth, examples will be drawn in this chapter primarily from the major intellectual property regimes sketched in Chapter 1, though moral rights, passing off and even designs law will occasionally be mentioned.
When taken together, the arguments presented in this chapter do seem to provide some type of justification for intellectual property protection in at least some circumstances, provided the various reasons that they offer for protecting intellectual property are kept in appropriate perspective. The complex question that is left to policy-makers and to courts is, given the ends that the intellectual property regimes might serve, how strong the protection they afford should be, and when it should be available. The rest of the book is an exploration of the answers that have been given to those questions in the existing intellectual property systems.
The strength of the various creator-centred justifications for intellectual property law has been fiercely contested. At one extreme are theorists whom we encountered in Chapter 1, theorists who deny that any individual can claim to have ‘created’ an intangible asset. For these writers the creator-centred justification of intellectual property is impossible. At the other extreme, some have claimed that creators have a ‘human right’ to intellectual property. Article 27(2) of the Universal Declaration of Human Rights proclaims that ‘Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author’. Neither of these extreme positions is likely to have much impact in shaping the future of intellectual property law and policy.
Four more modest lines of argument will be considered here. These are the arguments from creation, from desert, from personhood, and from autonomy. These arguments parallel arguments sometimes made to justify property in tangibles. Their concern is to justify strong rights to control, and not merely to profit from, the use of the intangible assets that are the subject matter of the intellectual property regimes. The analogy between justifications for property in tangibles and justifications for intellectual property is, of course, a false one. This is not least because the usual assumption is that intangible assets are neither crowdable, nor depletable: their use by one person will not normally affect their use by another. Nevertheless, the analogy has been extremely powerful in intellectual property policy-making.
The intuition that we are entitled to control that which we create seems fundamental. It is a recurring theme in the intellectual property literature. A crude argument is sometimes built upon this intuition, the argument that we should own what we create, provided that we cause no harm by our claim. However, three responses to the argument seem fatal to it.
First, the argument could only justify control over those elements of an intangible asset for which a creator is genuinely responsible. This is the problem of ‘cumulative creation’ encountered in Chapter 1. We saw there, and shall see in the proceeding chapters, that it is far from easy to identify those elements of an intangible for which a creator is responsible, and that the intellectual property systems do so with only varying degrees of success. As an example of how difficult it is to identify a creator’s contribution, consider the following example. The argument from creation is often made in discussions of trade mark policy as justifying the expansion of protection against uses of a mark not involving misrepresentation. In these discussions, it is usually assumed that the value of a particular mark flows only from the activities of its proprietor. However, as Dreyfuss points out, the value of a trade mark, at least beyond its value as a signal for the origin of a particular product, is often the result of the variety of uses that the consuming public finds for the mark: ‘Barbie’ as the name of a doll might be the creation of Mattel, but ‘Barbie’ as a euphemism for a particular understanding of womanhood is the creation of the myriad of uses to which that mark is put by the consuming public. If trade mark law means that Mattel can capture the value of these additional uses of the mark, it cannot be justified in doing so on the basis of the argument from creation.4
Second, the argument from creation could only apply where preventing the use of a particular intangible genuinely causes no harm to anyone else. As we shall see later in this chapter, this will not always be the case.
Third, even in circumstances in which a particular intangible asset can be said to be (more or less) the product of a particular creator’s activity, the argument from creation is built upon the logical mistake of the ‘is-ought’ fallacy. The fact that someone has been responsible for the creation of a particular intangible asset does not, without more, ground their normative claim to control its use. This is particularly the case if precluding a would-be user from the use of an intangible asset would do her harm or limit her autonomy. Those who point to the fact of creation as a justification for intellectual property are often implicitly making some other type of normative claim of the type outlined in this chapter. The argument from creation without harm makes no independent contribution to the justification of intellectual property.
It is a frequently made claim that the creator of an intangible ‘deserves’ control over its use. There are four ways in which such a desert claim may be established. First, a creator might deserve control of the intangible as a reward for her efforts in producing it. Second, a creator, or indeed developer, of an intangible might deserve control over its use because of the investment that she has made in its production. Third, a creator might deserve control of the intangible as a reward for the contribution that it makes to her culture. Fourth, Becker has suggested that various social norms may generate a need in the creator for identification with the intangible that she has produced and that she may deserve to have this need met.5
In assessing the merit of these arguments from desert, we should put to one side the general philosophical difficulties raised by the concept. Desert is an uncertain concept that has only relatively recently become the subject of rigorous philosophical analysis.6 It may well be that it is too uncertain a concept to justify ‘the abstract and general rules that guide conduct in a great society’.7 However, even if we assume that the concept of desert can be clearly expounded, it proves a problematic basis for the justification of intellectual property. This is for three reasons.
First, there is no direct correlation between a creator’s effort, investment, contribution, or need and the intangibles that any existing system of intellectual property protection either does, or might be expected to, protect. The desert claim will apply in only very particular situations. If it is effort that is deserving of reward, then the question arises of the minimum threshold of effort that renders an intangible deserving of protection, and whether intangibles that have required little effort should be protected. Justified primarily on this basis, the intellectual property regimes would be in danger of protecting only the perspiring, but not the inspired, creator. If it is investment that is deserving of reward, the threshold question also arises. The danger is then that the intellectual property regimes would prioritize the claims of the inefficient creator over those of the efficient one. Moreover, if effort or investment is to ground a desert claim, it must only be on the basis of the effort or investment of which the creator is capable, otherwise there would be the danger that the desert claim could be grounded on her capacity for effort or wealth, each of which is potentially the product of moral luck.
If it is contribution that is deserving of reward, we are left to identify, not only the level, but also the nature, of contribution that is deserving. We have already identified the problem of cumulative creation. But even an intangible asset that is on balance creative, and thus potentially a contribution to a community’s cultural life, may actually detract from it. Take the example of a violent and pornographic motion picture. It seems peculiar to claim that even the creative parts of such a work make a contribution to our culture that is deserving of reward.8 It is arguable that the inventor of machines to assist the production of cigarettes has made only a negative contribution to the common weal.
Finally, as to Becker’s need-based desert claim, it is difficult to know what it means to say that someone deserves reward because of their need. This possibility is allowed by Feinberg only in relation to compensation9 and by Sadurski not at all.10 Need-based claims and desert claims are usually considered different, if not opposing, categories of claim. However, as Becker himself admits, if the type of need-based claim that he describes is allowed, it would give undue preference to ‘tender-minded, insecure, possessive people’.11 Once again, a desert claim of this kind would justify intellectual property rights in only a very limited range of situations.
Second, even if the creator of an intangible can establish her desert, there may be good reasons for not recognizing her claim to control its use. She may already have been rewarded in other ways. Take the example of a newspaper journalist who produces a ‘scoop’ story. She may well be adequately rewarded by the salary that she receives, and her employer rewarded in the attention that the story attracts, without any additional form of reward. Further, whenever a would-be user can show that exclusion from use of an intangible will do her harm or unduly restrict her personal autonomy, the question arises as to why the creator ought to be rewarded at the expense of the would-be user.
Third, there is no reason why, even if the creator deserves something as her reward for effort or contribution, it ought necessarily to be the control over the use of the subject matter that intellectual property affords. We reward those who work hard to establish world peace and thereby contribute to our public life, with gratitude, praise and, perhaps, a Nobel prize. It is hard to see that the creators of many types of intangible expend more effort, invest more, contribute more, or are more closely identified with their achievements, than such people.
Like many of the arguments presented in this chapter, the argument from desert may indeed support some types of intellectual property in some circumstances, but does not represent a wholesale justification of the intellectual property system.
The argument from personhood is that the act of creation entails the embodiment of the personality, or personhood, of the creator in the intangible which she produces. In order to protect her as a person it is essential to give her some control over the intangibles in which she has invested herself. This argument has been wrongly attributed to Kant, who, in the essay usually cited, is more concerned with upholding the truthfulness of a publisher s implied representation that he is speaking on behalf of an author, than with the author’s control over her work per se.12 For Kant the wrong of unauthorized publication is a wrong of misrepresentation. This is evinced by his claim that the publication of an altered version of a book is not wrong at all, as long as it is not attributed to the original author.13 The argument from personhood has also been wrongly attributed to Hegel who, as we shall see in the following section, has more of a concern for personal autonomy. Rather, the argument parallels the work of the modern American philosopher Radin in her general justification of property rights.14 Although Radin bases her argument on the work of Hegel, it is distinguishable from any argument of his. In particular, Radin justifies property on the basis of a personhood-constituting connection between the potential owner and the thing claimed and not, as Hegel does, on the basis of the need to secure her autonomy.15
There are several difficulties with the justification of intellectual property as a means of protecting the personhood of the creator of an intangible.
First, it is difficult to understand precisely what is meant by ‘personality’ and its ‘embodiment’. Green says that by the embodiment of personality is meant the appropriation of external objects such that they ‘cease to be external’ to the appropriator and ‘become a sort of extension of the man’s organs, the constant apparatus through which he gives reality to his ideas and wishes’.16 The gist of the process seems to be one of self-actualization. Protecting this process of self-actualization is different from protecting reputation, autonomy, or even self-expression.17 However, it is clear that the sense in which my organs, my wedding ring, and the song that I compose each play a role in my development as a person is very different. It is also clear that these potentially appropriable things may not play a more important role in my self-actualization than, say, my home city or the school that I attended as a child. To roll up all these self-actualizing relations with the external world in the metaphor of embodiment is imprecise and unhelpful.
Second, many of the assets potentially protected by the intellectual property regimes will simply not be important as vehicles for self-actualization. Those that are most likely to be so are arguably the assets protected by copyright, moral rights, designs and, perhaps, trade mark law. It does not stretch credulity to claim that some authors and designers invest themselves in their expressive work, though perhaps not their functional work. It may even be that some traders invest themselves in their trade marks, the names by which they are publicly known. It may be that an individual embodies her personality in her work, design, or trade mark, but it is not clear that this will always be the case. And it is far less likely to be the case that an inventor gives this significance to her invention.
Third, it is unclear why my self-actualization through relations with particular assets, either entails, or even justifies, giving me control over their use. Very few of those who say ‘they’re playing our song’ actually mean that they wrote it. Yet the song might be crucial to the self-actualization of both the composer and the listener who has invested it with important personal meaning. It may be that control over the use of an asset, either tangible or intangible, is essential to prevent changes in the asset that rob it of its capacity to carry particular self-actualizing meanings. In that sense it might be that my ability to self-actualize in an important way can only be protected by giving me control over particular assets. However, this argument entails two difficulties. First, in relation to intangible assets, we have already seen that the usual assumption is that intangible assets of the kind protected by the intellectual property regimes are neither crowdable nor depletable. This is an assumption that we shall examine later, but to the extent that it is right, it undermines the importance of control over an asset to the realization of its self-actualizing potential. Second, even if it is right that control over an asset is important to its self-actualizing potential, we encounter the problem that changes in an asset in which more than one person has invested personal meaning might impact upon their self-realization differently. In the context of intangible assets, for example, we must be able to show why protecting the self-realization involved in, for example, writing a song is more important than protecting the self-realization involved in making it a listener’s ‘own’.
Fourth, as Harris points out, this type of argument might at its best justify granting control over the use of an asset, but it surely cannot justify granting the power to transfer control over that use. He asks how the power to transfer assets is compatible with the claim that they have become the equivalent of a person’s organs.18 Indeed, because the law of moral rights is often justified on the basis of personhood arguments, those rights are usually inalienable even if they can be waived and devised. The argument from personhood is both problematic and, at best, important to the justification of intellectual property in only a limited range of situations.
Two types of argument from autonomy are sometimes made to justify the intellectual property regimes. The first is a general argument that all kinds of property, including intellectual property, are justified by a respect for personal autonomy. The second is an argument for copyright, moral rights, designs and, perhaps, trade mark law, grounded in the need to secure not the general, but the expressive autonomy of an author or trade mark owner.
An attractive argument for property is that valuing personal autonomy must involve granting an individual at least some control over those things with which she is most closely associated: to allow her to carve out an area of individual dominion. If a creator can show a close association with a particular intangible asset, then respect for her personal autonomy may require that she be given at least some degree of control over its use. This type of argument has often been built upon the justifications for private property offered by Locke in Two Treatises of Government19 and Hegel in Philosophy of Right.20
Locke argues that every person has a property in her own person and thence her labour: which property seems to amount to a conception of personal liberty. When a person labours on an object that is not owned by anyone else, she joins that object with her labour and thereby makes it hers. If a creator has by her labour created a particular intangible, the only way in which to respect her property in her person, her liberty, might be to afford her property in the work.
Hegel argues that private property helps individuals to develop as autonomous persons by allowing them to interact with external objects in a way which facilitates the ‘supersession of the pure subjectivity of personality’.21 The precise meaning of this claim is a matter of considerable contention. As suggested above, some would argue that Hegel has in mind a variant of the personhood justification for property.22 But the best reading of the relevant passages of Philosophy of Right seems to be that property helps individuals to develop as autonomous persons by carving out an area over which they can exercise their will. It does this by enabling them to make choices about taking possession of, using, and alienating things in the external world. While for these purposes Hegel argues that ‘mental aptitudes, erudition, artistic skill, . . . inventions, and so forth’23 do not themselves count as objects capable of constituting property, they may become capable of constituting property by being embodied in ‘something external’.24 Hegel specifically suggests that copyright and patents can constitute property on this basis.
Without attempting a detailed critique of the work of Locke or Hegel, at least two difficulties with arguments from personal autonomy as justifications for intellectual property should be outlined.
First, none of the usual arguments from personal autonomy can establish a nexus between the creator and her work such that recognition of her right to control the work is essential to recognition of her personal autonomy.
As for arguments built upon the work of Locke, it has been pointed out: (i) that a person may not own herself, even though she is free, because it may be impossible to own a person;25 (ii) that the concept of ‘mixing labour’ is incoherent because labour, as a series of actions, is incapable of being mixed with something that could become the subject of a property right;26 and (iii) that there is no necessary reason, even though she is free, why the labourer ought to gain the resultant mixture rather than simply to lose her labour.27 This last objection would be particularly compelling in the situation in which an intangible is the product of a moment of inspiration rather than a long period of labour.
As for arguments built upon the work of Hegel, it is not clear why Hegel sees property as essential to the attainment of freedom, rather than as merely an institution that expands an individual’s range of choices and thereby increases her autonomy. A possible solution to this problem has been offered by Waldron, who emphasizes that a person’s actions in relation to an object may change it, ‘registering the effects of willing at one point of time and forcing an individual’s willing to become consistent and stable over a period’.28 This effect would be lost if others were allowed to alter the object after the initial registering of the individual’s will and some type of continuing control over the object is therefore essential to the development of the individual as an autonomous person. This reading of Hegel has been criticized as inconsistent with Hegel’s conception of autonomy as the condition in which an individual can operate as a ‘choosing agent’, rather than as a particular psychological state. Moreover, the reading has implications for the distribution of property that Hegel does not affirm.29 But, even if it can be accepted, Waldron’s reading may still mean that the work of Hegel provides only limited support to the claim that control over intangible assets is essential to the recognition of personal autonomy. This is again because of the assumption that such assets are neither crowdable nor depletable. It might only be in the context in which the use of an intangible does significantly alter it that this justification of intellectual property could be relied upon.
Second, against the claim that control over a particular intangible is essential to the recognition of a creator’s personal autonomy, must be set the claim that the grant of such control is a limitation of the autonomy of those who would use the intangible without her permission. It is therefore necessary to demonstrate that the impact on the creator’s personal autonomy of refusing her control over the intangible should trump the impact on the would-be user’s autonomy of granting such control. Again, there are hints, but only inconclusive hints, as to how this issue might be handled in the work of Locke and Hegel.
Locke argues that the labourer only has a right to appropriate the fruits of her labour if there is ‘enough and as good left in common for others’. This proviso has, of course, been the subject of extensive philosophical commentary. But Gordon claims that it preserves the autonomy of the would-be user in all situations in which ‘use of the [intangible] is essential to the use of his rational and creative faculties’.30 She argues that, properly applied, the proviso means that would-be users of an intangible should be free to use it on two conditions: (i) that they are prepared to pay for that use out of any profits which are attributable to use; or (ii) that they are not ‘stowaways’ using the intangible solely to save themselves effort and expense without any real interest in using the intellectual product for its own sake.31 However, Gordon’s argument would justify only a far more restricted type of intellectual property protection than that currently in force in any part of the world. Moreover, as she herself admits, her reading of the proviso justifies only a system of protection void of all injunctive relief and therefore subject to ‘all the familiar and intractable issues’ of a ‘pseudo-market’ or entailing the intractable task of combing and evaluating a defendant’s motives.32 It therefore justifies only a system that would prove unworkable in practice. Even the most generous reading of Locke’s proviso seems unable to provide a solution to the problem of the competing autonomy claims of the would-be user of an intangible.
Hegel addresses the problem of the autonomy of the would-be user directly. He acknowledges that given that ‘the purpose of a product of mind is that people other than its author should understand and make it the possession of their ideas’,33 it must sometimes be legitimate for others to take the ideas which underpin that valuable intangible and embody them in a different form. Indeed, so much might others take on those ideas that they might embody them in something external in a way that might give them as strong a claim to those ideas as has the original creator.34 In other words, preventing them from using an intangible asset will sometimes be an unjustified restraint on their autonomy. Hegel argues that the question of when preventing such use is justified cannot be finally settled either in principle or by positive legislation.35 Dealing specifically with copyright, he claims that ‘legislation attains its end of securing the property rights of author and publisher only to a very restricted extent’,36 but claims that determining precisely what that extent should be is a fruitless task. In either its Lockean or Hegelian forms, the argument from personal autonomy seems to support some type of intellectual property protection for some kinds of intangibles, but knowing what precise shape that protection ought to take is exceedingly difficult.
As a specific instance of the claim that intellectual property regimes are essential to the adequate recognition of personal autonomy, it might be argued that some aspects of the copyright, designs, moral rights, and trade mark regimes are essential to the adequate recognition of the expressive autonomy of authors and trade mark owners.37 In the fields of copyright and designs, this would be particularly true in relation to the protection of expressive material. In the field of moral rights, we shall see in Chapter 3 that it may be a convincing approach to the justification of the highly contentious right to object to derogatory treatment. In the field of trade mark, this argument may have particular force in justifying the protection of trade marks against merely allusive uses.38
However it is justified, four aspects of the freedom of speech have been recognized as important, though given very different relative weights by different theorists. First, the freedom of speech entails freedom from speech restraint that is not clearly justified. Second, the freedom of speech may entail guaranteeing speakers the opportunity to be heard, although the extent to which it does so is highly contentious.39 Third, the freedom of speech may entail guaranteeing that a speaker is not to be compelled to express a message with which she does not want to be associated.40 Fourth, as a corollary of the third principle, freedom of speech may entail freedom from compulsion to subsidize a message with which the person from whom the subsidy is sought chooses not to be associated.41
It is possible that arguments based on the third or fourth of these aspects of the free speech principle could support at least some copyright, moral rights, designs, or trade mark protection in some situations. We shall focus on copyright and trade mark.
First, it could be argued that a work or mark involves ‘the author’s fixed expression [being] . . . communicated anew to each successive viewer or listener [as an] . . . ongoing presentation of the author’s discourse to the public’.42 To prevent the unauthorized use of the work or mark, might then be to ensure that its creator is not compelled to express views with which she would wish to be disassociated. The problem with this approach is that, even if in some circumstances the work or mark is understood to be an ongoing discourse of the creator, in many circumstances it will be clear that the expression of which the unauthorized use is a part is in fact the expression of the user. It may be implausible to suggest that the creator of the work or mark is, by its unauthorized use, compelled to express any message at all.43 One possible situation in which such a suggestion could, however, be plausible, might be that in which use of the work or mark alters its meaning for future use by the author or trader. This, of course, again depends upon the extent to which the relevant intangible really is neither crowdable nor depletable, an issue to which we shall return.
Second, it could be argued that allowing use of the work or trade mark by someone other than its creator ‘compels that author/speaker to subsidize, with raw material, the speech of the second user’.44 In short, even in circumstances in which it is clear that the speech of the second user is not the speech of the author or trader herself, the unauthorized use of her expression may force her to participate in speech with which she disagrees in the same way that forcing her to subsidize it financially might do. Allowing this may be incompatible with respect for her expressive autonomy. This is a far more interesting approach than that grounded in a general autonomy claim. One important question, however, is whether it can be used to justify copyright or trade mark infringement in contexts in which the use of the work or mark is not transformative, transformative in the sense that it is being used in the expression of messages not of the creator’s choosing. Where there is no transformative use, the author or trader is not compelled to subsidize any message with which she would wish to be disassociated. The only exception to this might be if she could establish that, for example, the timing or the manner of the publication of the work or mark constituted a transformative use. This would be a difficult claim to establish, though not one unknown to some systems of moral rights protection.
The difficulty with this second argument is that, in contexts of transformative use in which it is arguably strongest, the user is more likely to have a free speech claim of her own. This offers a good example of the dilemma that we saw in considering the general argument from autonomy. Two situations merit particular attention, situations in which preventing the use of a work or mark may effectively silence its would-be user. First, use of a work or mark might be necessary effectively to comment upon either the work or mark, or the author or trader. A would-be user may well have an important free speech claim to permit such comment in circumstances in which it requires the use of the work or mark itself. It is clear that there may be no other effective way in which to comment upon a speaker or her expression than to use, and sometimes to recast, it. The copyright and trade mark law of most countries therefore excludes this type of use from infringement to at least some extent. Second, use of a work or mark might be necessary because it has become so important to the culture that it constitutes a shorthand for a range of meanings for which no adequate alternative means of expression exist. In these circumstances, use of the work might be necessary either to contest, or to invoke, the range of meanings for which it is a cipher (the example of ‘Barbie’ is again useful here). The parodic use of iconic works or marks offers an example of activity that can be prevented in some copyright and trade mark systems, and is privileged with exclusions from infringement in others. But the situations in which it might be necessary to use a work or mark to contest, or to invoke, a particular range of meanings do not all involve parody. Thus, like the general argument from autonomy, the argument from expressive autonomy faces a real challenge from those whose autonomy is limited by the relevant intellectual property regimes. Once again, it seems that the argument from expressive autonomy could be used to justify some, but by no means all, intellectual property protection.
As we have seen, most of the creator-centred justifications of the intellectual property rights parallel arguments made to justify rights in tangible property. The user-centred justifications focus upon harm, misrepresentation, and unjust enrichment and resemble arguments more commonly found in justifications for the law of tort and restitution, than justifications for the law of property. An interesting question arises as to whether they might therefore have different consequences both for the scope of the rights and the remedies available for their infringement.
This argument is usually of two parts. It is claimed that the unauthorized user causes harm to the creator of the relevant subject matter simply by her use of it. It is then claimed that the creator of the subject matter does a would-be user of it no harm by excluding her from its use. Therefore, the law prevents harm to the creator, and does the would-be user no wrong, by preventing unauthorized use. There are three problems with this argument.
First, it is not at all clear when, if ever, the unauthorized use of the potential subject of an intellectual property right does its creator any harm. In assessing such harm, we should count only the extent to which the creator is worse off because of the unauthorized use per se and not the extent to which she might be better off were that use prohibited. It would be circular to include the loss of any profit that might flow from the exclusive use of the intangible, because the question of whether the creator is entitled to exclusive use is essentially the question of whether the imposition of an intellectual property right is justified. It is at least arguable that a creator can suffer harm of the relevant type by the unauthorized use of an intangible she has created. This may once again be particularly the case in relation to intangible assets of an expressive kind, such as many of those protected by copyright, moral rights, designs, or trade mark law. Again, we shall focus on copyright and trade mark. Unauthorized use can mean that a work or mark is so altered that it is no longer useful to its creator because it can no longer be received by a potential audience in the same way. Imagine that a visual artist creates a particular image to promote affirmative action on the grounds of race. If that image is appropriated by a neo-Nazi group, it may no longer have value for the artist. Even without their altering the actual image, its use by the neo-Nazi group may change its meaning, may render it liable to be read differently by an anticipated audience. From the perspective of the creator, this may do the image such damage that she can no longer use it herself, even if it is clear that the creator has no association with the unauthorized use. Such an argument does not depend upon accepting the expressive autonomy arguments outlined in the preceding section. It would also be able to account for the protection of trade marks against unauthorized use that does harm to the reputation of the mark, even in contexts involving no consumer confusion. The argument does depend, however, on the contested claim that the meaning of a work or mark can change through use. Moreover, even if this first assumption of the argument from harm can be accepted in relation to some types of intangible, it will not apply to others. There is no suggestion that the creator of a particular drug suffers harm in the relevant sense when the drug is manufactured and used by an unauthorized rival. Intangibles of this type really are neither crowdable nor depletable. The first assumption underpinning the argument from harm is at best one of limited application.
Second, the other assumption of the argument from harm, that the creator of an intangible does a would-be user no harm in excluding her from its use, is also highly contentious. In assessing such harm, we should count only the extent to which the would-be user is worse off in a world in which an intangible has been created and she is excluded from its use than she would be in a world in which the intangible had never been created. This is because the usual assumption is that, without the efforts of the creator, the intangible would not have existed, and so there can be no harm to the would-be user in exclusion from its use. It is unclear, however, whether this will always be the case. Consider the subject matter of the copyright and trade mark regimes. We have seen that in at least two circumstances excluding someone from the use of a work or mark may be effectively to silence her. It would therefore undoubtedly be to leave her worse off than she would have been had the work or mark never been created. Consider, similarly, the subject matter of the patent regime. It will usually be the case that exclusion from the use of a patented invention will do no harm of the relevant kind, but it need not always be so. For example, it may be that exclusion from the use of an invention effectively puts a competitor out of business and that she would therefore have been better off had the invention never been made. Indeed, the competitor may even have been on the point of making the invention herself, and exclusion from its use does her particular harm. Further, exclusion from the use of an invention may also cause emotional harm. Waldron offers the example of a patient whose suffering is intensified by the knowledge that there is a patented cure for his terminal disease from the use of which he is being excluded.45 Thus both the assumptions underpinning the argument from harm seem somewhat problematic.
Third, even assuming that a creator can show harm from the unauthorized use of her intangible, and the would-be user can show no harm in her exclusion from its use, it is not axiomatic that this is harm of a type that the law ought to remedy. There is not an independent principle that preventible harm ought to be compensated. The State does not, and should not, intervene to prevent all types of harm, even deliberately inflicted harm. In the law of obligations it is only preventible harm caused by a legal wrong that is compensated. There must be some independent basis for regarding the behaviour that has caused the relevant harm as wrongful. Such an independent basis may be found in one of the other justifications for intellectual property protection. But it cannot be found in the fact that the unauthorized use causes harm alone. The argument from harm seems to add little, if anything, to the other justifications for intellectual property protection.
One possible variant of the argument from harm is of more persuasive power, though again of limited application. This is the argument from misrepresentation. If unauthorized use of an intangible constitutes a misrepresentation of some kind that is likely to cause harm, that may be good grounds for preventing the unauthorized use. Misrepresentation is certainly behaviour that the general law regards as blameworthy. It is both morally reprehensible and has undesirable economic consequences. In the context of trade, misrepresentation about goods or services increases consumer search costs and reduces the incentive that a producer has to invest in producing goods of a consistently high quality. This will be especially the case with ‘experience’ goods, those which a consumer must try in order to determine whether they meet her needs or tastes. Once a consumer has tried and liked a particular product, then clear channels of communication between her and its producer enable her to find it again easily. This encourages the producer to make sure that her goods maintain the quality that they had on first sampling and to lower the price of her goods to attract repeat purchases. Misrepresentation undermines this process by muddying the channels of communication between producer and consumer. There is good reason to prevent misrepresentation.
The argument from misrepresentation is, however, only of limited application. It can justify liability for passing off, dependent as it is upon proof of misrepresentation. It can also explain liability for analogous types of trade mark infringement dependent upon proof of consumer confusion. We shall consider this argument in relation to the protection of brands in Chapter 5. As we shall see in Chapter 3, the argument may even justify some aspects of the law of moral rights. But it cannot explain the major intellectual property systems of copyright or patent.
The argument from unjust enrichment is that the unauthorized user of an intangible receives a benefit from its use and thereby ‘reaps where she has not sown’. This behaviour of ‘reaping without sowing’ is assumed to be morally reprehensible. The phrase is biblical and assumes much of its rhetorical power from that resonance, although its equivalent biblical usage occurs in a New Testament parable in which the behaviour is neither condoned, nor condemned.46 This principle, and the corresponding argument from unjust enrichment, have been important to the discussion of many areas of intellectual property development, not least to the development of the database right and to the proposed expansion of patent law into areas such as the protection of business methods. As we saw in Chapter 1, they have also been central to the development of a doctrine of misappropriation in the jurisdictions in which that doctrine has grown. But the argument from unjust enrichment is, like many of the justifications for intellectual property protection, deeply problematic.
First, it is clear that the principle against reaping without sowing is not absolute. We all reap without sowing, and regard ourselves as justified in doing so, even without the consent, implicit or explicit, of those upon whose efforts we build. Cumulative creation is not only inevitable, but desirable. The pioneer of a new style or technique in the arts might establish an artistic language and educate a public to understand it. The pioneer may wish to preserve the style or technique she develops for her own use, or for the use of those within her circle. But subsequent creators will imitate, adapt and expand that style or technique. And they may well do so, not only without the permission of the pioneer, but against her objections and to challenge her authority as the first practitioner of the style or technique. The same principle applies in the world of science and technology. Few inventions are utterly path-breaking. Most science is path-dependent at least to the extent that it builds upon a limited number of paradigm shifts in scientific enquiry.47 Commerce operates in a similar way. A businesswoman might devise a new way of doing business or promote her goods in an attractive new way. To prevent competitors from building upon these methods of doing business, might be to stifle the development both of the relevant service and of a competitive market for its supply. To prevent competitors from imitating new promotional techniques, might be to stifle competition for the relevant goods. Competitors need to be able to imitate, at least to the extent of being able to establish that their own goods or services are an appropriate substitute for those of the pioneer. Some intellectual property theorists speak as if the principle against reaping without sowing were absolute, claiming that we ought to only succeed by ‘means of [our] own strength, [our] own ingenuity, skill and capital’48 and ‘through [our] own unaided efforts’.49 But to condemn all reaping without sowing would be to condemn all imitation, to stifle the development of artistic traditions, of science and technology, and of markets. It would be to condemn us to live in a world of self-sufficiency mitigated only by agreement, a world in which we neither could, nor would want to, live.
Second, the principle against reaping without sowing is not an independent principle that can be used to justify a right to control the use of an intangible. It is relevant, if at all, only once such an entitlement has been established. This argument begins with the affirmation that the principle against reaping without sowing is not absolute. If that is right, then the question arises as to precisely when, if ever, it is wrong to reap without sowing. The answer implicit in the principle must be that it is wrong to reap without sowing if someone else, and in particular the sower, has a stronger claim to that which is reaped. But this, of course, assumes that the sower does have a claim to that which is reaped and that its strength can be assessed. These are the very issues that it is sought to determine by application of the reaping without sowing principle. The argument against unjust enrichment is revealed to be circular and to add nothing to the other arguments for intellectual property protection.
The so-called ‘economic’ justifications for the intellectual property regimes emphasize the need to provide for the production, dissemination, and efficient exploitation of their various types of subject matter. For economic theorists, the intended beneficiary of these regimes is the community as a whole, which demands the production of, and access to, as many intangible assets as possible.
In order to understand these justifications, it is necessary to begin with the distinction between ‘private’ and ‘public’ goods. A ‘private’ good is one from the enjoyment of which it is possible to exclude non-purchasers. It is assumed that, in perfect conditions, the market will ensure the production of private goods and that those goods will be allocated to the party who values them most, and who will most efficiently exploit them. There will be an incentive to produce private goods because their selling price will allow a producer to recoup both the costs of production and the benefit of the goods to a purchaser. Given perfect conditions, the market will then ensure that those goods are allocated to the user who values them most highly by passing them to the user prepared to pay the highest price for them.
Many intellectual property writers, particularly in the US, begin with this description of the production and distribution of ‘private’ goods and contrast the situation of the production and distribution of intangible assets of the type protected by the intellectual property regimes. Such assets are said to be ‘public goods’ in that it is difficult to exclude non-purchasers from their enjoyment. Because of the difficulty of excluding non-purchasers, there will be no incentive to create and to disseminate such intangible assets. They will be under-produced unless the law intervenes to cure this ‘market failure’. Given that no single individual will be able to co-ordinate, or have incentive to invest in, their development, they will also be inefficiently exploited. The deadweight losses associated with giving an intellectual property owner exclusive rights to use an asset that others could otherwise exploit are said to be justified as a means of curing the relevant market failure. Other potential methods of curing the market failure, such as systems of State or private patronage, are seen as less desirable. First, they involve the centralization of decisions about which types of intangible asset to produce. Second, they do not solve the problem of the potentially inefficient exploitation of subject matter the value of which cannot be captured by any single individual.
This justification for the intellectual property regimes has been politically powerful, in part because it is apparently enshrined in the constitution of the US.50 Moreover, in relation to at least some of the subject matter of these regimes, the theory holds some merit. Take two examples.
First, an author might be less inclined to write a novel, or a publisher less willing to produce it and to market it to best effect, if a rival can reproduce it in a cheap edition bearing none of the costs associated with the creation of the work. Creating a market for the novel by, at least temporarily, excluding the rival publisher seems to have at least three advantages over alternative methods of solving this problem. First, it seems more democratic than having a patron or the State choose which novels to finance. Second, not only is it more democratic, the creation of such markets may be an essential corollary of a commitment to free speech. By creating a competitive market for works, copyright may create the conditions in which individuals are given an effective opportunity for their opinions to be heard.51 Third, the market mechanism will ensure a steady flow of novels, not subject to the varying commitment of a patron or the State to the funding of the literary arts. In addition to these advantages over alternative methods of solving the problem of market failure, the grant of copyright in a novel is, as we have seen, unlikely to constitute one of the situations in which an intellectual property right affords true monopoly power.
Second, a pharmaceutical company may be unwilling to invest the vast sums necessary to develop, test, and obtain regulatory approval for a drug that it knows can be cheaply reproduced by its competitors. A new drug costs about £350 million to develop and only three in 10 new drugs recoup their development costs.52 The pharmaceutical industry contributes over 35 per cent of all research and development investment in the UK.53 Research and development intensity in the pharmaceutical industry (the ratio of research and development expenditure to sales income) is about four times that of the average in other sectors.54 The process of regulatory approval of drugs is sometimes so lengthy that it has given rise to the grant of Supplementary Protection Certificates that we shall consider in Chapter 4. In order to sustain an industry in which the fruits of research are so expensive to obtain and so comparatively cheap to imitate, some type of intervention in the normal operation of the market is needed and a patent regime is an important form of intervention.
Of course, this intervention could take the alternative form of government subsidies for research. This might be preferable to patent protection for drugs if it could be shown that public health concerns required investment in the development of drugs that are potentially unprofitable, perhaps because they affect only a small population group or a large, but economically disadvantaged, one. There has been particular concern that the patent system provides inadequate incentives for the development of drugs for diseases more common in the developing world.55 But in broad terms, public health concerns will require investment in the development of drugs that affect large numbers of patients and that are therefore the most potentially profitable drugs to develop. A combination of patent protection and government subsidies for research that the pharmaceutical industry is unlikely to undertake may well be the most efficient way of solving the market failure arising from the public goods characteristics of innovation in pharmaceuticals.
Similarly, a solution to the problem of market failure dependent upon government subsidies might be preferable to patent protection if a patent were likely to give its owner true monopoly power in the market for drugs to treat a particular disease. This might mean that expenditure on patented pharmaceuticals absorbed a disproportionate amount of a country’s total expenditure on healthcare. However, once again a combination of patent protection and direct government intervention has been thought to provide an efficient solution to this potential problem of the patent system. In many countries of the world, prices for drugs are controlled by a government agency, as they are in the UK under the Pharmaceutical Price Regulation Scheme. Even if adapted for the needs of the healthcare system, a system of patents for pharmaceuticals seems necessary as a mechanism to provide for the development, disclosure, and effective exploitation of new drugs.
However, although the justification for the intellectual property regimes built upon concepts of market failure can account for the protection of many types of subject matter that those regimes currently protect, it cannot account for the protection of all the types of subject matter that they include. Two problems emerge. First, there is much which those regimes currently protect that would be, at least to the same extent, created, disseminated and even efficiently exploited in the absence of such protection. This is the problem of whether some of the subject matter currently protected by the intellectual property regimes really needs to be protected. Second, it is difficult to structure the relevant regimes such that the deadweight losses to which they give rise are no greater than is necessary to ensure the production, dissemination, and efficient exploitation of the relevant types of subject matter. This is the problem of whether the protection afforded by our systems of intellectual property is effectively tailored to meet their economic goals. Each of these problems merits closer consideration.
There is little doubt that there is much that the intellectual property system currently protects that would be created, disseminated, and even efficiently exploited were it not protected.
Consider the creation of much that is currently protected by intellectual property rights.
First, some subject matter is produced as a by-product of another activity and its creation requires no additional incentive. For example, in the fine arts, it is the sale of works as physical objects that usually funds their creation. Additional profits from copyright royalties are often a bonus. The research work of university academics is carried on as part of their publicly funded mission in teaching and learning. At least in areas of research neither dependent upon attracting private research funding, nor seen as a source of revenue by university authorities, the research of university academics is not motivated by the profits that can be gleaned from intellectual property rights. Thus in many countries it is normal practice for academics to publish their copyright protected journal articles without any payment of royalties by the journal publisher. The issues of copyright and patent and the products of university research are addressed in Chapters 3 and 4 respectively.
Second, even without the incentive of the intellectual property regimes, some intangible assets that are currently protected would be created because of the need to compete in a given market. For example, the registered designs system rewards those who devise attractive new shapes for manufactured products. But the incentive for producing such shapes is simply the need to sell more of the relevant product. In industries in which the appearance of products is important, it is the competitive pressure to keep ahead of changing fashion that often spurs investment in creation. There has been no shortage of innovation in the appearance of manufactured products even though, as we shall see in Chapter 5, the system of registration for designs has been relatively little used. Similarly, we shall see in Chapter 4, that there has been pressure to introduce patents for new methods of doing business, but business people are always on the look out for new ways of making money. Finally, trade marks represent a whole type of intellectual property for the creation of which no incentive is required, though we shall see in Chapter 4 that arguments for the protection of trade marks against allusive use have been made on this basis.
Third, of those intangible assets that are not the by-product of some other activity and that would not be produced simply as a result of competitive pressure, some would be created even without the intellectual property regimes because the cost of creating them can be recouped from the market lead that innovation brings. There is an inevitable time-lag in imitation. During this time-lag a market-leader can establish significant reputational advantages and build effective relationships with customers. Imitation can also be costly. In one study it was shown that, in 86 per cent of the 127 industries studied, the costs of imitating a major new, but unpatented, product exceeded 50 per cent of its research and development costs. In 40 per cent of the industries studied, imitation costs exceeded 75 per cent of research and development costs.56 In at least some fields of technical innovation and design, studies have consistently shown market lead to be regarded as a more important mechanism for recapturing investment in research and development than patent rights.57 Indeed, surveys have demonstrated whole rafts of alternative mechanisms for capturing the value of investment in innovation.58
Consider, too, the issue of whether an incentive is always necessary for the dissemination of much that is currently protected by the intellectual property regimes. In the case of works protected by copyright, there is some possibility that, without protection, a creator might keep her work secret. Assuming this to be unlikely, the argument concerning incentives for distribution usually focuses upon the need to create incentives for producers such as publishers. However, even without protection, there would still be an incentive to publish works that had been created and not kept secret. This is because the costs borne by the first publisher of a freely available work (with the possible exception of marketing costs), are likely to be equivalent to the costs borne by the second publisher of a competing edition. Arguments from the publishing industry that this was not the case led to the introduction of copyright in typographical arrangements and might also be seen to justify the publication right discussed in Chapter 3. However, changes in printing technology have arguably rendered copyright in typographical arrangements unnecessary, and the publication right is, as we shall see in Chapter 3, difficult to explain other than as the product of history.
In the case of many inventions and designs, dissemination would often occur because the secrets of the invention or design are either self-evident or available through reverse engineering. Much is made in patent theory of the need to encourage the disclosure of technology that would otherwise remain secret. However, many inventions are of a type that it is impossible both to exploit and to keep secret. If they are of a type such that it is possible to exploit them and to keep them secret, then obtaining a patent may not be attractive. Furthermore, considerable doubt has been cast on the actual value of patent disclosures to technological development.59 It seems likely that intellectual property rights are not always a necessary incentive for the dissemination of the subject matter that they currently protect.
Consider, finally, the issue of whether intellectual property rights are necessary to ensure the efficient exploitation of the subject matter they protect.
Intellectual property rights are said to ensure the efficient exploitation of their subject matter by facilitating the coordination of, and offering an incentive to invest in, its development.60 The proponents of this argument maintain that, while the potential stock of intangible assets may be neither exhaustible nor depletable, the resources needed to develop them are. It is this scarcity and potential depletion that leads to questions regarding the efficiency of their exploitation. In patents this is sometimes expressed as the argument that inventions might be created without the intellectual property incentive, but they would be very unlikely to arrive at market in the form of a developed product. Intellectual property rights are crucial to attract capital and to coordinate development.
However, the argument that intellectual property rights are necessary for the efficient exploitation of their subject matter has been the subject of considerable criticism. First expounded in relation to the law of patents, it has been shown inadequately to explain even the existing patent system.61 It has also been subject to theoretical criticism, such as the claim that the gains patents contribute to the efficiency of exploitation, may be dissipated in rivalry to obtain the patent itself.62 Moreover, other types of intangibles than those protected by patent may not need significant coordination of, or investment in, their exploitation. Once they are created, musical, literary, dramatic and artistic works do not require significant further development and their exploitation does not require coordination. It may well be that some works are crowdable and depletable. However, the usual assumption is that they are not, and that the more that they are used and re-used, the greater the social gain.
Indeed, it may be that the costs associated with privatizing the exploitation of intangible assets are radically underestimated in some models of the economic effect of intellectual property. In relation to subject matter that does not require the coordination of, or significant investment in, their exploitation, these costs will be obvious. For example, an author may permit the making of only one film version of her novel when there may be real social gain in several competing film versions only some of which she would endorse. But even in relation to assets the exploitation of which does require significant coordination or investment, intellectual property rights may well decrease, rather than increase, the efficiency of that exploitation. This has been labelled the ‘tragedy of the anti-commons’ and is a notion symmetrical to the traditional ‘tragedy of the commons’.63 Heller and Eisenberg emphasize that the costs associated with the grant of patents must be considered dynamically and not merely statically. They claim that in the area of biomedical research ‘[e]ach upstream patent allows its owner to set up another tollbooth on the road to product development, adding to the cost and slowing the pace of downstream biomedical innovation’.64 A careful dynamic analysis of any given area of innovation would need to be made before it could be claimed that intellectual property rights increase the efficiency with which any particular intangible asset is likely to be exploited.
Not surprisingly, the idea that intellectual property rights are necessary to the creation, dissemination, and efficient exploitation of their subject matter is subject to many potential caveats. The creation, dissemination, and efficient exploitation of some types of intangible asset are dependent upon intellectual property protection, but this is not true of all types of intangible asset nor, arguably, of many that are currently protected by the intellectual property regimes. To the extent that it is not true of a particular intangible asset, its protection must be justified on other grounds.
Let us assume that some type of intellectual property protection is necessary for the creation, dissemination, and efficient exploitation of a particular type of subject matter. It is then essential that the intellectual property regimes are so shaped as to achieve this economic goal with the minimum of deadweight loss. The effects of providing excessive intellectual property protection can be very serious indeed. For example, over-broad patents arguably hampered the development of the incandescent lighting, automobile, aircraft, and radio industries.65 These effects may even outlive the duration of the intellectual property right itself.66
There are two aspects of the intellectual property regimes that will need to be shaped appropriately if the creation, dissemination, and efficient exploitation of their subject matter is to be achieved with minimum deadweight loss. First, each individual regime will need to be shaped so as to give the appropriate level of protection to the subject matter that it covers. This will be determined by the scope of the particular right and the remedies available to enforce it. Second, the shape of the whole intellectual property map, the way in which the different regimes fit together and do, or do not, overlap in the protection that they offer particular types of subject matter, will also need to be carefully considered.
As for the shape of the individual regimes, difficulties arise because of the variety of subject matter that each potentially protects. Economists working on the appropriate scope of patent rights have shown that it will depend upon the invention that is sought to protect, the product to which the invention relates, the industry to which the product is important and, in particular, the stage of development of that industry.67 However, an individual intellectual property regime such as copyright might protect material as diverse as avant garde music, airport novels, computer programs, and advertising copy. To determine the appropriate scope of that right, and the remedies best suited to its enforcement, is an economic task of considerable complexity.
Even more difficult, is the task of organising the taxonomy of the intellectual property system as a whole. Given that, if the economic goals of the intellectual property regimes are to be met with a minimum of deadweight loss, different types of subject matter in different types of industry will need different systems of protection, there will need to be a range of intellectual property regimes in place.
If there are too few different types of protection available, it will occur more frequently that the protection provided for a particular type of subject matter is inappropriate. For this reason some have argued that differently shaped systems of protection for different industries may be appropriate and, indeed, that the patent offices and judges already achieve this to some extent by allowing the standards of the existing patent system to operate differently in different contexts.68
However, there are also real costs in having too many different types of protection in place. There is the cost of keeping the system as a whole responsive to changing technologies. The international system of semiconductor topography protection is now little used because changes in technology have rendered it largely obsolete. And, perhaps more importantly, there is the cost of policing the boundaries between the different regimes, determining into which one or more of the many regimes a particular type of technology should fit. The more boundaries that there are between different regimes, the greater the legal costs generated by the intellectual property system as a whole. Those legal costs are already great. For example, between June 1989 and July 1990, about $1 billion was spent by US firms on patent litigation in the United States Patent and Trademark Office (‘USPTO’), while in 1991 those same firms only spent $3.7 billion on basic research.69 The intellectual property incentives we offer for investment in research and development are already costly and there ought to be a real reluctance to make them more so. These types of problem in keeping the system up to date and in policing boundaries have even led one commentator to muse that it might be better to abolish the intellectual property systems and replace them with a new, general, tortious action against the misappropriation of ‘business intangibles’.70 But, of course, the uncertainties created by such an action would themselves lead to added expense. Getting the taxonomy of the intellectual property system right so as to maximize the creation, dissemination, and efficient exploitation of their subject matter is at least as difficult as determining the appropriate shape of any given regime.
It can be seen, then, that the intellectual property regimes have been justified in a variety of ways, none of which operates to explain even all important aspects of the existing regimes and none of which is without inherent difficulty. The critique of these various arguments is important because each plays an important role in the on-going expansion of the intellectual property systems. Moreover, apparent anomalies in the law can often be understood as the product of competing regulatory purposes. Thus copyright in a computer program lasts for 70 years from the death of its author. Presumably copyright does not subsist in a computer program because it embodies the personality of its author. But, as we shall see in Chapter 3, the argument from personhood is often used as the justification of the lengthy period of duration in copyright. Were the protection of computer programs recognized as being, for example, about the economics of the computer industry, or even the desert of computer programmers, it is likely that computer programs would be protected for a much shorter period. A rational understanding of the purposes of intellectual property law is necessary to ground its rational development. And a rational understanding of the purposes of intellectual property law must begin with the recognition that those purposes are often conflicting, rarely justify the whole system and are, in many cases, problematic. The difficult task of reconciling those various purposes is the constant task of the law of intellectual property.