The following is an excerpt from a draft of Professor Terry Fisher's upcoming article, "Theories of Intellectual Property." This section explains the "personality theory" rationale for intellectual property rights. If you have time after reading this excerpt, or if you would like to understand it in the context of other theoretical bases for intellectual property rights, please read the article in its entirety.
III. C.
Private property rights, argue personality theorists, should be recognized when (and only when) they would promote human flourishing by protecting or fostering fundamental human needs or interests. The first step in the application of this perspective to intellectual property is identification of the specific needs or interests one wishes to promote. As Jeremy Waldron has argued, a wide variety of interests might be deemed fundamental, each of which arguably could be advanced by a system of property rights:
1.Peace of Mind. An exclusive right to determine how certain resources shall be used
might be thought essential to avoid moral exhaustion -- the sense of guilt that arises
from awareness that one's actions, one's use of the commons, disadvantages countless
2.Privacy. Property rights may be necessary to provide persons "refuge[s] from the
general society of mankind" -- places where they can either be alone or enjoy intimacy
3.Self-Reliance. An exclusive right to control certain resources may be thought necessary
to enable persons to become independent, self-directing.
4.Self-Realization as a Social Being. The freedom to own and thus trade things may be
necessary to enable persons to help shape their social environments and establish their
places in communities.
5.Self-Realization as an Individual. Ownership of property may be necessary to enable
a person to assert his or her will and to be recognized as a free agent by others.
6.Security and leisure. Control over a certain amount of resources may be necessary to
free a person from obsession with obtaining the means of survival, the "impulsion of desire,"
and thus to enable them to attend to higher pursuits.
7.Responsibility. Virtues like "prudence," self-direction, and foresight may be cultivated
by the opportunity and obligation to manage one's own resources.
8.Identity. Selfhood may be thought to depend upon the ability to project a continuing
life plan into the future, which is turn is fostered by connection to and responsibility for
property.
9.Citizenship. Ownership of a certain amount of resources might be thought necessary
to put a person in an economic and psychological position to participate effectively in
the polity.
10.Benevolence. Property rights may be thought essential to enable a person to express
ideas of what is beautiful or to enact benevolent wishes.
Six of these ten arguments -- 1, 3, 4, 6, 7, 9 -- provide, at most, weak support for a system of intellectual-property rights. To the extent that intellectual-property rights have economic value and may be bought and sold, gained and lost, they may contribute to their owners' abilities to avoid guilt, become autonomous, engage in independent political action, etc. But those values could be promoted equally well by providing persons property interests in land or shares in private
corporations. Nothing turns on the fact that the entitlements pertain to intellectual products.
Personhood-based justifications for intellectual-property rights thus must be found, if anywhere, in some combination of themes 2, 5, 8, and 10: the interests of privacy; individual self-realization; identity; and benevolence. But the writers who have sought to extract from those sources answers to specific questions have come to widely divergent conclusions. Some examples:
When an author has revealed her work to the world, does it nevertheless continue to fall
within the zone of her "personhood" -- so that she may legitimately claim a right to restrict its
further communication? Neil Netanel, relying on an exploration of the ideal of "autonomy,"
thinks yes. Lloyd Weinreb, reasoning that, "once the individual has communicated her
expression publicly, it takes on a 'life of its own' and . . . its further communication does
not involve her autonomous self," thinks no.
Assume the answer is to the previous question is yes. May the author alienate his right to
control the copying of his work? Kant, reasoning that "an author's interest in deciding how
and when to speak [is] an inalienable part of his personality," thought no; Hegel, reasoning
that expressions of mental aptitudes (as opposed to the aptitudes themselves) were
"external to the author and therefore freely alienable," thought yes.
Should an artist's investment of his self in a work of visual art (say, a painting or sculpture)
prevent others from imitating his creation? Hegel thought no -- on the ground that the copy
would be "essentially a product of the copyist's own mental and technical ability." Justin
Hughes seems to take the opposite position.
Is the protection of trade secrets necessary to protect privacy interests? Edwin Hettinger
thinks no -- on the ground that most trade secrets are owned by corporations, which do not
have the "personal features privacy is intended to protect"; Lynn Sharp Paine, disagrees,
arguing that the right to privacy includes the freedom to reveal information to a limited circle
of friends or associates without fear that it will be exposed to the world -- a freedom that
trade-secret law shields.
Is a celebrity's persona a sufficiently important repository of selfhood that other persons
ought not be permitted to exploit that persona commercially without permission? Justin
Hughes suggests yes, reasoning that "[a]s long as an individual identifies with his personal
image, he will have a personality stake in that image." Michael Madow, insisting that the
"creative (and autonomous) role of the media and the audience in the meaning-making
process" are at least as important as the "personality" of the celebrity, sharply disagrees.
Two related problems underlie these and many other disagreements among personality theorists. First, the conception of the self -- the image of "personhood" that, through adjustments of intellectual-property doctrine, we are trying to nurture or protect -- is too abstract and thin to provide answers to many specific questions. Either a more fully articulated vision of human nature (that would forthrightly address such grand questions as the importance of creativity to the soul) or a conception of personhood tied more tightly to a particular culture and time seem necessary if we are to provide lawmakers guidance on the kinds of issue that beset them.
Second, no personality theorist has yet dealt adequately with what Margaret Radin calls the problem of fetishism. Which of the many tastes exhibited by current members of American culture should be indulged, and which should not? The quest for individuality? Nationalism? Nostalgia for a real or imagined ethnic or racial identity? The hope that audiences will treat one's creations with respect? The hunger for fifteen minutes (or more) of fame? Yearnings or orientations of all of these sorts are implicated by intellectual-property disputes. Deciding which merit our deference is essential to determining how those disputes should be resolved.