Cover

New Frontiers in the Philosophy of Intellectual Property

Series editor

Title

Copyright

Contents

List of contributors

Acknowledgements

Table of cases

Australia

Canada

Court of Justice of the European Union

European Patent Office

Inter-American Court of Human Rights

United Kingdom

United States

World Trade Organization

Table of legislation and treaties

Africa

Australia

Canada

Europe

Latin America

United Kingdom

United States

Introduction: Philosophy of intellectual property – incentives, rights and duties

Control rights and income rights in ideas

Restorative justice, autonomy and intellectual property

Welfare, efficiency and idealisation

Invention, law and morality

Copyright, freedom and communication

Morality, sharing and free riding

1: Autonomy, social selves and intellectual property claims

I. Autonomy and autonomy-related interests

The value of autonomy

II. Individual autonomy and the social self

III. Autonomy and the complexity of ownership

IV. Autonomy and IP

IP claims for cultural products

V. Conclusion

2: Corrective justice and intellectual property rights in traditional knowledge

I. Laying the groundwork

II. The argument

III. A fool’s errand thrice over?

IV. Easy cases

V. Hard cases: transgenerational harms and the non-identity problem

VI. Hard cases: autonomy, self-governance and remedies for violations of diffuse interests and rights

VII. Prospect

3: Designing a successor to the patent as second best solution to the problem of optimum provision of good ideas

1. The near-public goods character of good ideas and argument for intellectual property rights

2. How the productivity argument and technological change weaken the case for intellectual property rights

3. The non-property reward regime of pure science

4. Adapting the regime of scientific discovery to the domain of invention

5. Conclusion: rent-seeking and the problem of information

4: Ethical issues surrounding intellectual property rights

1. Introduction

2. IPRs and the problems of access and availability

3. Two standard solutions to the access problem

4. Two defences of the ethical legitimacy of IPRs

5. Where to go from here?

5: On the value of the intellectual commons

1. Introduction

2. Is philosophy useful for thinking about problems of regulation?

3. Private IP and moral rights

3.1 Ruling out options (1) and (2): there cannot be a moral right to own IP

3.2 The ‘no hardship’ argument

4. The appropriate goals of intellectual property regulation

Liberty

Making best use of resources

Equality

5. Balancing rights and goals in IP regulation

5.1 Prospects for answering the empirical question

5.2 Prospects of answering the normative question

6. Conclusion

6: Immorality and patents: The exclusion of inventions contrary to ordre public and morality

I. Introduction

II. Background

III. Issues in the interpretation of an explicit immorality exclusion

(a) The focus of the moral inquiry

(b) The standard of immorality required to trigger the exclusion

IV. Deeper issues

V. Article 53(a) as a policy lever for judges and patent examiners

Which test of ‘morality’?

What evidence?

Are the concepts of ‘ordre public’ and ‘morality’ separate and distinct?

Must an invention or activity be illegal before it triggers the patent exclusion?

What happens if standards of morality change during the twenty-year period following the filing of a patent?

What happens if an invention has different applications, some of which are moral and some of which are immoral?

VI. Embryo stem cell patents: the current controversy

VII. Conclusion

Post Script

7: ‘The genetic code is 3.6 billion years old: it’s time for a rewrite’: Questioning the metaphors and analogies of synthetic biology and life science patenting

1. Introduction

2. What is synthetic biology?

Creating minimal genomes

The ‘standardisation of parts, devices and systems’

Metabolic engineering

3. Metaphor and analogy in the life sciences

Explanation in biology: chemistry, mechanism, information and systems engineering

From machine to mechanism

Engineering

Does the analogy work?

4. Intellectual property and synthetic biology

8: Copyright infringement as compelled speech

I. Introduction

II. Speaking in one’s own words

III. Baker v. Selden

IV. Compelled speech

V. Dialogue

VI. Concluding remarks

9: Public reason, communication and intellectual property

Introduction: concerns about propertisation

1. Copyright law

1.1 Copyright expansionism

1.2 Kant’s writings on copyright

1.3 Copyright law revisited

2. Trade mark law

2.1 Speech vs. property

2.2 Allusive uses of trade marks

2.3 Allusion and speech: Kantian communication

3. Patent law’s information function

3.1 Public reason: information and intelligibility

Conclusion

10: Illegal downloading, free riding and justice

1. Introduction

2. Is free riding immoral?

3. Free riding and public goods

4. Intellectual goods as public goods

5. Is P2P sharing of MP3 files unfairly free riding on ‘public goods’?

6. Harmless copying in the absence of market interaction

8. Adding insult to injury: the unfairness of punishing illegal downloaders

9. Conclusion

11: The virtuous p(eer): reflections on the ethics of file sharing

Introduction

Music file sharing as virtuous

i. The virtue ethics of copyright

II. The context of copyright: ‘copynorms’

iii. Sharing music

Finding the mean

Bibliography

Index