Expressive Incentives in Intellectual Property

Outlines of the paper and my comments

Introduction

I. Theories of Intellectual Property, p. 1745

A. Utilitarianism, p. 1750

B. Moral Rights, p. 1753

Moral-rights theories typically come in two flavors: labor-desert and personhood. Labor-desert theory sees intellectual property rights as a Lockean acknowledgment of the labor of creation, in granting copyright or patent protection to creators that have worked sufficiently hard. According to Professor Wendy Gordon’s articulation of this line of thinking, intellectual property rights cease to be justified when they “harm . . . other persons’ equal abilities to create or to draw upon the

preexisting cultural matrix and scientific heritage.” Unlike the utilitarian

viewpoint, which seeks to discontinue intellectual property rights

when they cease to be efficient, the American labor-desert approach typically

refuses to grant protection in labored-on works only when third

parties are prevented from drawing on the public domain. (Fromer, 2012, p. 1753)

Personhood theories also establish intellectual property protection as a moral right of sorts, but unlike labor-desert approaches, they see a creative work as a Hegelian extension of the author’s personality. According to Professor Margaret Radin, a leading American legal-personhood theorist, “to achieve proper self-development—to be a person—an individual

needs some control over resources in the external environment.

The necessary assurances of control take the form of property rights.”44

There are related understandings of personhood: Professor Roberta

Kwall sees “the [work’s] importance as a reflection of the author’s

meaning and an embodiment of her message.”45 Professor Sonia Katyal

views creative works as expressions of a person’s individualism and

freedom.46 And Professor Stewart Sterk perceives that a theory grounded

in moral rights “conjures up a genius irrevocably committed to his

work.”47

Professor Robert has also recently invoked a Kantian notion of autonomy as justifying IP protection. To Merges intellectual property rights are valuable because they "respect claims over creative objects that are bound up with the exercise of an individual's will" and thereby promote their personal freedom. In turn, such rights allow creative individuals the opportunity to seek to devote themselves professionally and fully to their talents. There are limits to rights under this theory, according to Merges, because property claims "must not be so broad that they interfere with the freedom of fellow citizens." (Fromer, 2012, p. 1755)

[推廣至人本教育理論，學校之強制性規定 (尤其是表彰行政績效指標之規定) 不該妨礙學生之潛能與意志自主性。]

Congress, federal courts, and commentators tend to disclaim any significant presence of moral rights protection within American copyright and patent law beyond the limited rights of attribution and integrity (preventing a work's destruction or alteration) set forth in the Visual Artists' Rights' Act of 1900. Other countries, such as France, Germany, and Italy, provide authors with broad--often perpetual and inalienable-- protections sounding in moral-rights interests: principally, the rights of attribution, integrity, retraction of a work from the public, ad first disclosure of a work to the public. (Fromer, 2012, p. 1756)
[但我看不出歐洲國家的著作權法對人格權重視之程度，有顯著超過美國？]

C. Rhetoric of Moral Rights, p. 1756

II. Expressive Incentives in Intellectual Property

A. Connecting Utilitarianism and Moral Rights, p. 1761

Robert Merges maintains that efficiency concerns of the utilitarian flavor normally are a midlevel principle for intellectual property law design, but at the highest level, deontological Lockean labor theory, Kantian autonomy theory, and distributive-justice concerns inform the law's design. (Fromer, 2012, p. 1763)

B. Creators Strong Beliefs in Moral Rights, p. 1764

(Fromer, 2012, p. 1776)

C. Expressive Law, p. 1781

III. Potential Application, p. 1789