Harvard University Press
Harvard University Press Books Reviewed in 2011
Justifying Intellectual Property
Edition: 1st
Format: Hardback
Author: Robert P Merges
ISBN: 9780674049482
Publishers: Harvard University Press
Price: £44.95
Publication Date: 2011
Publisher's Title Information
Why should a property interest exist in an intangible item? In recent years, arguments over intellectual property have often divided proponentswho emphasize the importance of providing incentives for producers of creative works from skeptics who emphasize the need for free and open access to knowledge.
In a wide-ranging and ambitious analysis, Robert P. Merges establishes a sophisticated rationale for the most vital form of modern property: IP rights. His insightful new book answers the many critics who contend that these rights are inefficient, unfair, and theoretically incoherent. But Merges' vigorous defense of IP is also a call for appropriate legal constraints and boundaries: IP rights are real, but they come with real limits.
Drawing on Kant, Locke, and Rawls as well as contemporary scholars, Merges crafts an original theory to explain why IP rights make sense as a reward for effort and as a way to encourage individuals to strive. He also provides a novel explanation of why awarding IP rights to creative people is fair for everyone else in society, by contributing to a just distribution of resources. Merges argues convincingly that IP rights are based on a solid ethical foundation, andwhen subject to fair limitsthese rights are an indispensable part of a well-functioning society.
Reviews to date
“In this book, which promises to be a landmark in the field, Merges presents a wide-ranging and highly insightful synthesis of three strands of property-related philosophy in order to provide a grounding for mid-level principles of intellectual property.”Henry E. Smith, Harvard Law School
The Author
Robert P. Merges is Wilson Sonsini Goodrich & Rosati Professor of Law and Technology, University of California, Berkeley, School of Law, and co-founder of the Berkeley Center for Law and Technology.
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Part of Preface
Several years ago I told my esteemed and experienced Berkeley colleague Jesse Choper that I was beginning work on this book. After he heard a bit about my plans, his response was this: "Oh, I get it. Taking a Big Swing, are you?" Now as I look back on the whole projectprefaces having the invariably paradoxical quality of being written at the end, but appearing at the beginningI can see that he was right. I had reached a point where I needed to disrupt the scholarly rhythm I had fallen into: a staccato series of law review articles, punctuated by casebook revisions, with the occasional "think piece" woven into the mix. I wanted to take on something bigger, more sustained; to go back to the dugout, pick up a bigger bat, and swing from the heels. This book is the result of that fateful, and very foolish, decision.
So up I strode, ready to take a big hack at some tough issues in my primary field of study, intellectual property (IP). I wanted to defend IP rights against a host of charges leveled in recent years: that IP was no longer necessary in the digital age; that the field is an incoherent tangle of made-up rationales and half-baked theories; that IP, whatever it is, is not really property at all. But I wanted to do more than simply defend the IP edifice as it stands. I wanted to suggest some ways that this area of law could be trimmed and tailored to better serve its main purpose, which for me has always been protecting creative works as a way of honoring and rewarding creative people. And so the tide of this book has a double meaning. I want to justify IP rights, in the sense of defending them from various critiques; but I also want to justify it in the sense of justifying a margin, or a line of typeto straighten it out, neaten it up, make it a bit more orderly.
Here is how I plan to go about it. I will talk mainly about three things: (1) ideas on property held by important philosophers, both old (Locke and Kant), and not-so-old (John Rawls, Robert Nozick, Jeremy Waldron); (1) close examination of these ideas with the specifics of IP chiefly in mind; and (3) ways these ideas might help in understanding the future of property rights in our increasingly digitized and networked world.
Carrying this out has taken longer than I planned and been harder than I thought. But it has also been something I can only describe as very close to fun. It is an odd idea of fun to get up several hours before the rest of the family, pour a cup of coffee, and anguish over just exactly what some complex text is trying to say to me, or what I really think about some gnarly tangle of a conundrum, orworst of all!how to set those thoughts into a series of words and a string of sentences that hang together in a semblance of sense and order. The challenge is something like crossing a wide, raging river that howls along at spring flood, with only a vague notion that there may be a few submerged stepping stones to hold you upright. If that sounds like an outing most sane people would gladly avoid, I am sure you are right. As for my own part, I found it irresistible.