Theories and principles of the intellectual property of their practical value. Pluralism versus utilitarianism in Merges’s principles. Taking autonomy and dignity seriously in longhair ownership. The feature of the use of copyright in judicial decisions.
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See eg JIP 156 (describing the attribution of different IP traditions to a civil / common law divide as an ‘old convention’ which ‘has a tendency to be wildly overblown’, and then noting that the dignity principle is a particular feature of European copyright). cf also JC Ginsburg, ‘A Tale of Two Copyrights: Literary Property in The civil law tradition of IP is perhaps best captured by the statement of Le Chapelier, when presenting the French Playwrights Decree in 1791, that ‘[t]he most sacred, the most legitimate, the most unassailable, and, I may say, the most personal of all properties, is the work which is the fruit of a writer’s thoughts’.10 Implicit in this statement is that the law recognizes property rights in the products of authorial (and other forms of intellectual) labour in the belief that the nature or value of such labour or of the products themselves merits such recognition, and/or that such recognition is necessary or desirable either to enable authors to flourish as autonomous human beings, or to protect their rights in respect of their personhood or intellectual labour.11 Each of these arguments is a matter of considerable controversy, as is its focus on the rights and interests of individual creators. They are also the departure point for the second tradition of IP, epitomized by the United States’ (US) copyright and patent clause, which empowers Congress ‘[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries’. Implicit in this clause is that the justification for granting IP rights lies not in moral or natural law arguments, but in a policy commitment to encouraging the production and distribution of intellectual artefacts through the conferral of property. Such conferral, it is said, benefits the public economically by resolving the market failure which the intangibility of those artefacts creates, as well as socially by supporting a robust public domain of expressive, informa- tional and other intellectual (including technical) subject matter. Resnik’s description of the practical implications of his pluralistic model elucidates Merges’s model by highlighting some important similarities and differences between the two. According to Resnik, when resolving IP disputes a court ought to decide which of the values having primacy in IP are at stake, and then weigh and balance those values to decide which ought to have priority in the particular case. While all IP values are a priori equal in Resnik’s account, the extent of their engagement in a case depends in part on the IP right involved and its social and legal function. For example, because (US) patent law exists to ‘promote the progress of science and the useful arts’, utility ought to have a higher priority in patent disputes than privacy and autonomy.
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