The economic model of intellectual property rights, expressed in the philosophy of utilitarianism, continues to prevail in many circles. Copyrights and patents are warranted as an ex ante incentive system, as a correction of the market failure of easily-copied public goods that give rise to free riders. These exclusive rights promote efficiency and ensure that public goods are not underproduced. However, they should only be implemented when their economic benefits clearly exceed the costs and social wealth is optimized. Despite the logic of this approach it is still regrettable that the discussion of intellectual property systems has focused so extensively on economics and incentives, while ignoring other considerations. With some notable exceptions, intellectual property doctrine has largely been disassociated from normative justifications grounded in natural property rights. As Benkler (2001, p. 59) points out, ‘the basic ideological commitment of American intellectual property is heavily utilitarian, not Lockean or Hegelian’. As we saw in the previous chapter, the US courts have enthusiastically embraced the utilitarian rationale, which is not without some justification. In Mazer v. Stein1 the Supreme Court explains and endorses the economic philosophy behind the clause empowering Congress to grant patents and copyrights. This philosophy is based on a purely instrumental view of these rights, ‘the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors …’.2 Detractors of this utilitarian or welfare consequentialist approach cite the theory’s fundamental indeterminacy and impracticality. Questions abound about...
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