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Ethics Inf Technol (2012) 14:169177 DOI 10.1007/s10676-012-9287-9
BOOK REVIEW
Robert Merges: Justifying intellectual property
Harvard UP, Cambridge, MA, 2011, xiv+402 pp, ISBN 9780674049482
Gordon Hull
Published online: 21 January 2012 Springer Science+Business Media B.V. 2012
Introduction
Intellectual property (IP) sits squarely in the middle of numerous contemporary moral topics, ranging from gene patents to amateur remix culture. At the same time, both the scope and intensity of the IP legal regime have been increasing.1 It is thus surprising, perhaps, that there is relatively little work comprehensively addressing its normative foundations. This lacuna stems from at least two sources. One is that the de facto basis for IP law is utilitarian, as its authorizing Constitutional text is couched in terms of progress and incentives.2 Whatever one thinks of utilitarianism as a moral theory, this strategy suffers from indeterminacy: it is actually very difcult to determine to what extent IP provides incentives for creation that outweigh its costs as a regulatory regime, and even harder to determine what level of IP protection is appropriate for what kind of creation. However, just these sorts of determinations are necessary to decide what sorts of IP are justied on utilitarian grounds. The other reason is a sense that, as Fisher (2001) has argued, ones normative theory underdetermines policy: being Lockean or utilitarian makes little doctrinal difference.
Robert Merges new book is an ambitious and innovative attempt to redress both of these reasons. To the rst, noting that, as applied to IP law, utilitarian theory could not bear the load that has been assigned to it (307), he argues that on Lockean, Kantian, or Rawlsian grounds, IP is morally justied. The second he addresses by interposing
what he calls midlevel principles between these higher order theories and practical policies. The midlevel principles, such as proportionality, actually do a lot of the work in policy-making by prescribing, for example, that an inventors reward ought not be out of proportion to the effort that went into the invention. Merges uses those principles to analyze three current issues: the value of IP in sustaining a class of creative professionals, the extent to which digital property changes the IP landscape, and the extent to which patent law ought to bend to make life-saving drugs...