Copyhype

Although published in 2011, I’ve only recently finished reading Robert Merges’ Justifying Intellectual Property. The book provides an examination of the ethical foundations of intellectual property — primarily copyright and patent — and an explanation of how they fit into a fair and just society. Merges has made a significant contribution to the field of IP while also advancing a positive view of a legal doctrine that has been the subject of increasing skepticism over the past two decades.

It could be said that Justifying Intellectual Property is actually two books in one.

In the first section, Merges explains his theory of the philosophical foundation and justification of intellectual property. He jettisons the utilitarian basis of IP that tends to dominate copyright debates (particularly in the academic arena). Essentially, the utilitarian seeks to maximize net social welfare; IP policy is working if its benefits outweigh its costs. But for Merges, when it comes to IP, this type of calculus is so complex as to be, for all practical purposes, impossible — like, he says, trying to design “a perfect socialist economy.” How do you measure the “optimal number” of copyrighted works? And how do you quantify the quality of works?

Instead, Merges uses property as his starting point, but not some narrow, primitive conception of property that only includes those things we can see or touch. As Merges explains, property is an incredibly adaptable doctrine that has developed a vocabulary that is just as useful for intangibles as it is for tangibles. But most importantly for Merges, property is built around an important core principle, a one-to-one mapping of owner to asset that allows for decentralized ownership and coordination.

Merges obviously doesn’t declare copyright to be property and call it a day. He synthesizes the work of three influential philosophers — John Locke, Immanuel Kant, and John Rawls — to create his normative foundation of IP. As he summarizes near the end of the book:

Locke has a simple but convincing story about initial appropriation, the conditions under which property rights originally arise. Kant understands ownership to be crucial to the development of a person’s full potential, which involves both extensive interaction with objects in the environment and also persistent rights over those objects, so that the individual can place his unique stamp on them. And for Rawls, property fits into the overall scheme of a fair and just society, taking its place alongside other institutions and rights that guarantee an equal chance at self-fulfillment to all citizens.

Locke in particular has fallen somewhat out of favor among academics for the relevance of his labor theory of appropriation to intellectual property. Merges joins several other legal scholars in rehabilitating the Lockean foundations of copyright. ¹Others include Adam Mossoff, Saving Locke from Marx: the Labor Theory of Value in Intellectual Property, 29 Social Philosophy and Policy 283 (2012); Justin Hughes, Locke’s 1694 Memorandum (and other Incomplete Historiographies) (2006). A big part of this rehabilitation comes from focusing on Locke’s “provisos” — limitations or conditions on property appropriation and ownership. Merges writes that these “provisos” — “sufficiency”, “spoliation”, and “charity” — have not received enough attention by scholars, particularly the “charity” proviso. But these provisos, says Merges, are central to Lockean property theory. If properly applied, they strengthen the justification for intellectual property, especially in ways that are relevant to current policy debates.

In the remaining sections, Merges departs from the normative foundation he established to argue, essentially, that normative foundations are not the most important guiding principles of IP law. That honor instead goes to midlevel principles, the “basic concepts that tie together a number of discrete and detailed doctrines, rules, and practices in a particular legal field.” The primacy of midlevel principles over foundational, or “upper-level principles” is a concept that Merges attributes mostly to John Rawls and his conception of pluralism in a modern state. Merges explains

I believe in the independence of … foundational normative principles from the operational details of the field, as well as from the midlevel principles that arise from and are shaped by those details. By “independence” I mean that there are a number of foundational normative commitments that may serve equally well to anchor the principles and practices of IP law. I offered the ones I did… because those are the ones I believe best justify the structure of IP law. But other foundations might serve as well. As I put it earlier, in my view there is “room at the bottom,” at the foundational level of the field, for various justificatory principles, including perhaps utilitarianism and various alternative ethical theories.

Midlevel principles engage foundational values in a number of ways, but they do not depend on any particular set of values for their validity. They spring from doctrine and detail, from the grain of actual practice. It is at the level of midlevel principles, therefore, that much normative debate in the IP field takes place. From a certain point of view, in fact, this is their role exactly: they enable normative debate — debate above the detailed doctrinal level — without requiring deep agreement about ultimate normative commitments. Because of this, they are the common currency of most debate over IP policy.

Merges identifies four plausible candidates for midlevel principles in IP law, though there are obviously other potential candidates: nonremoval (from the public domain), proportionality, efficiency, and dignity. While all are explored throughout the book, Merges sets aside an entire chapter to discuss proportionality in detail. As he describes it, proportionality is in many ways a corollary to the justification for intellectual property. If we accept that the act of creation or invention entitles one to property rights, then it follows that one is not entitled to anything beyond what one creates or invents. That is, the rights should be proportionate to what a creator deserves.

From this discussion of midlevel principles, Merges turns to contemporary issues in IP policy to show how the principles might be applied in practice. These issues cover a wide spectrum: from corporate ownership of copyrighted works and transaction costs, to property in the digital era (which includes remixes, collaborative creation, and open source licenses), to patents and drugs for the developing world.

Merges concludes his work by reiterating what he considers the basic elements of a workable theory of IP. Intellectual property law should (1) “Propertize creative labor,” (2) “Grant real rights, but not absolute rights”, and (3) “Accommodate the needs of consumers and users by (a) facilitating and encouraging cheap and easy IP permission and licensing mechanisms, together with (b) simple waiver techniques that permit binding dedication of rights to the public.”

At times, I felt that I was not reading specifically about intellectual property, but about property in general. Copyright skeptics often make the mistake that certain aspects of copyright — that it should provide a public benefit, that there are times when competing interests override exclusive rights — distinguish it from other forms of property. Quite the opposite. All property shares these characteristics, and intellectual property, at least how Merges conceives of it, comes the closest to the Platonic ideal of property.

While Justifying Intellectual Property may not be an easy read, it is certainly an accessible read — put another way, it requires mental stamina rather than mental agility. One does not necessarily need a legal or philosophical background to get what’s going on. Merges does not assume much prior knowledge on the part of the reader; concepts are explained fully as they are introduced. This is, in my opinion, one of the strengths of the book. Weak arguments are not disguised behind academic jargon. Instead, the clarity of writing reveals the clarity of thinking.

The other great strength, in my opinion, is that Merges does not take any of his assertions for granted. He moves carefully from point to point to ensure that each conclusion he makes rests on a solid logical foundation. And he anticipates counterarguments, many of which are familiar to those who have followed copyright debates closely over the past decade. So, for example, Merges replies to arguments that IP is not susceptible to being property because it is “nonrivalrous”; or that it is not justified because it creates “artificial scarcity.” He discusses open source licenses and “remix culture”, fan sites and the democratization of publishing (and not, lest one think Merges is a caricature of a “copyright maximalist”, in a negative manner).

Justifying Intellectual Property is a landmark work that provides a solid theoretical foundation to “what may be called the metaphysics of the law.” It should be on the shelf of anyone with a deep interest in intellectual property doctrine and policy.