Considering theories of intellectual property on World IP Day

Portrait of Locke in 1697 by Godfrey Kneller from Wikipedia and in the public domain

I was wondering what the history of World Intellectual Property day, which is observed today (largely on Twitter!) might be, so like any good researcher I turned to the internet or more specifically Wikipedia to find out more. I’ve learnt the day was chosen by the World Intellectual Property Organisation (WIPO) in 2000 to celebrate innovation and the protection of intellectual property. WIPO were formed in 1970 on 26 April, hence the significance of this date.

So does the day have any significance for copyright literacy? It’s an interesting question. World IP Day celebrates not just copyright but other forms of IP protection such as patents and trademarks. Which leads me to some interesting philosophical questions on the purpose of copyright and other IP laws. I’ve almost finished studying the most enlightening course at Harvard Law School called Copyright X. I have Emilie Algenio to thank for recommending the course and Frank Hellwig for nominating me as a previous graduate of the programme. One of the aspects I’ve enjoyed most has been the philosophical underpinnings of copyright law. Professor Terry Fisher’s entire lecture series is online and I’ve really enjoyed them all, as well as the weekly webinars where we discuss lots of topical copyright cases. But considering theories of IP was an aspect of the course I’d previously paid little attention to. My belief that copyright was a property right and designed to reward creativity and the skill and labour of a creator had been something I had accepted almost unquestioningly. I dived into a bit of copyright history when preparing for a keynote at ALT-C a few years ago, tracing copying laws back to the Statute of Anne and the Labour Theory of John Locke. However, as part of Copyright X I have learnt about 3 additional theories of IP, and realised that the common law tradition, of viewing copyright as reward for one’s labour is not without it’s critics.
The three other theories we have studied include:
  • Personhood Theory – from the European tradition and the writings of Kant and Hegel, this theory holds that our person is embodied in our creative works and our creative works are our ‘spiritual children’ so hence moral rights take on a greater significance.
  • Welfare Theory (or Utilitarianism) – from the work of John Stuart Mill and Jeremy Bentham, this theory states that laws, including copyright, should be constructed for the great good of the greatest number of people. Of central importance to this is the idea that some works are ‘public goods’ which means they are non-rivalrous and governments may need to invest in either creating them, or encouraging others to do this. Arguably art and poetry could be viewed as public goods, but so can roads, lighthouses and other infrastructure. The system needs to balance fair reward with exceptions to allow people to use copyright works.
  • Cultural Theory – probably the least well known, but the one that Professor Fisher most aligns himself with. Cultural theory has influences from philosophy, law and various disciplines, and contends that the law should cultivate a just and attractive culture. Works should be encouraged for the greater good of humanity and the law should encourage people to behave accordingly. Copyright reformers who subscribe to this theory believe barriers that prevent copyright works being used for educational purposes should be removed.
I found a great blog post summarising each of these theories, which I suspect might be written by someone who’s also studied Copyright X. So on World IP, let’s take a moment to think about what underpins copyright laws. Do you subscribe to a particularly philosophical approach to copyright? Chris and I had a recent exchange about the matter and I think we are both influenced by all of them. Terry Fisher certainly makes a compelling case for cultural theory so I encourage you to watch his video lecture on this. It was a new one to me, but it really does emphasise the need for strong educational exceptions to copyright, something which I definitely feel passionate about.

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