Why do we have more than one form of intellectual property rights? Why are the structures of the patent and copyright forms so different? What determines the optimal structure of each form? The conventional theory of intellectual property rights posits that such rights exist to stimulate the creation and distribution of intellectual goods.1 Alternatively, theories of personhood justify intellectual property rights on the grounds that they protect objects through which authors and inventors have expressed their “wills,” which is central to self-definition and personhood, or that they create social conditions supportive of creative intellectual activity, which in turn is conducive to human flourishing.
We have developed robust theories to explain why we have the institution of intellectual property rights, but such theories provide a thin basis at best for analyzing the structure of those rights. The bundles of entitlements comprising the patent and copyright forms look quite different from each other and different again from those found in real property. While a theory of incentives and distribution can explain why intellectual property rights exist, it does not really explain, for instance, why patent law prohibits a wider range of behavior than copyright does (copyright law prohibits only copying whereas patent law forbids independent creation as well), why the remedial landscape of patent law is harsher than that of copyright, or why patentees must disgorge information about themselves and their creations in order to receive protection whereas copyright holders need not. Theories of intellectual property based on labor or personhood, however elegant or profound, provide no better traction for answering such questions.
Intellectual Property Law | Law | Property Law and Real Estate
Information Costs in Patent and Copyright,
Va. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3435