The Utilitarian Theory Of IP Law

1432 Words6 Pages
Student ID 2007 Patents and copyright are true property rights that can be licensed, assigned and transferred and, as such, ought to be perpetual as there is no public interest in limiting their duration by a fixed term. “Furthermore, there is no need to have regard for interests other than those of the inventor and the author in determining the scope of protection, and the list of subject matter excluded from patentability and defences to copyright infringement and exceptions to copyright should be narrowed or eliminated altogether…” Reference at least one jurisdiction. Introduction I will argue that the quote in the question is wrong because the public interest is of paramount importance to IP law. Further, if patents and copyrights were…show more content…
Gerald Dworkin emphasises that ‘all copyright systems seek to strike a balance between the rights of the owner and the public interest. Whilst I agree with Fisher’s Kantian view that IP law should offer some protection to creators and inventors, this must be limited to benefit society. The utilitarian theory of IP law, the theory I find most compelling, is the ‘guideline that lawmakers’ beacon when shaping property rights.’ Landes and Posner's essay exemplifies this theory, arguing that IP law should protect creations and inventions for the benefit of society. Despite this, I will argue that IP protection has gone too far beyond utilitarian theory, so the term of copyrights and patents ought to be shortened and exclusions and exceptions must…show more content…
While the theories differ, each acknowledges the role of the public interest. The utilitarian theory aims to maximise social welfare. It argues that, since most forms of IP can be easily replicated, authors and inventors must protected as incentive to produce, thereby advancing science and useful arts. The public interest is clearly the goal of this theory. The theory of wealth maximisation, or the economic theory, is a version of the utilitarian theory whose goal is wealth maximisation, for example Landes’ and Posner’s theory. Whilst the theory prioritises authors’ and inventors’ wealth, the public interest is important as the theory rejects owners of copyright and patents being given too many exclusive rights, which would restrict public access and prevent the functioning of IP. Hegel’s personality theory , developed and popularised by Radin and Hughes , is that individual creations are a manifestation of personhood, and leaving one’s mark is important to human flourishing so creations ought to be protected. This theory values human flourishing, being a variation of the public

    More about The Utilitarian Theory Of IP Law

      Open Document