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Justifying Intellectual Property Hardcover – May 16, 2011

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Editorial Reviews


In this book, which promises to be a landmark in the field, Merges presents a wide-ranging and highly insightful synthesis of three strands of property-related philosophy in order to provide a grounding for mid-level principles of intellectual property. (Henry E. Smith, Harvard Law School)

A new Bible for Intellectual Property...At the fundamental level, Merges relies upon deontological ethics derived from Locke (justification for appropriation), Kant (individual freedoms), and Rawls (distributive justice). By threading together these historic lines of thought, Merges provides an ethical foundation both for the establishment of property rights for creative contributions to society as well as for substantive limits to those rights. Justifying Intellectual Property is a fascinating book...[It] offers a new framework for understanding intellectual property with a particular focus on why it makes sense to offer property rights for creative enterprises. (Dennis Crouch PatentlyO.com 2011-10-14)

About the Author

Robert P. Merges is Wilson Sonsini Goodrich & Rosati Professor of Law and Technology, University of California, Berkeley, School of Law, and co-founder of the Berkeley Center for Law and Technology.

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Product Details

  • Hardcover: 422 pages
  • Publisher: Harvard University Press (June 13, 2011)
  • Language: English
  • ISBN-10: 0674049489
  • ISBN-13: 978-0674049482
  • Product Dimensions: 6.4 x 1.4 x 9.4 inches
  • Shipping Weight: 1.7 pounds (View shipping rates and policies)
  • Average Customer Review: 4.0 out of 5 stars  See all reviews (2 customer reviews)
  • Amazon Best Sellers Rank: #474,095 in Books (See Top 100 in Books)

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Sometimes you read a book and come away with more questions than answers. This book, which is beautifully written (why cannot all such academics write like this?) takes on the controversial subject of intellectual property. As demonstrated by recent legal spats involving the likes of Apple and Blackberry, IP is hardly a arcane matter just for lawyers and executives - it affects all of us. We live in the age of file-sharing; we can download books, films and other material in seconds. Meanwhile, the issue of patents has become an international hot issue due to demands from peoples in poor countries for access to patent-free drugs to deal with HIV, TB and other killers diseases and conditions.

First of all, on the positive side, Merges is to be congratulated for defending IP in a way that goes far beyond the usual utilitarian, consequentialist arguments that are made in defence of IP. (That is not to say that he ignores those arguments out of hand). He realises that for some critics of IP, the issues are as much matters of ethics as they are of material benefit. So, in an interesting exercise, he seeks, not always convincingly, to knit together the ideas of Locke, Rawls and Kant to build an ethical foundation for IP, both in terms of justifying the rights of individuals to "propertise" their labour, while also using these men's ideas to justify restrictions on certain forms of IP (such as when he writes about waivers, or proportionality), and to justify things such as redistributive methods to ameliorate what are seen as cases where IP rights give "too much" benefit to an IP holder.
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Format: Hardcover
As the title claims, the purpose of this book is to provide a justification for intellectual property. In contrast to much of the work in this area, however, Justifying Intellectual Property does not build its case solely on economic or utilitarian grounds. Instead, the author attempts to make the ethical case for IP, arguing that these rights run deeper and are more fundamental than the conventional view of IP rights as policy tools to spur innovation. To support this contention, the author brings in a significant amount of material from Locke, Kant, and Rawls to build his case. The first chapters of this book deal with these somewhat dense philosophical questions, but the later chapters move toward what the author refers to as "mid-level principles", the principles that are more familiar to those acquainted with IP. These include efficiency and proportionality among others. The author, however, does not abandon the ethical foundation laid in the first chapters. He builds upon it, incorporating these mid-level principles into his model and then, in the final chapters, addressing more contemporary issues in IP.

The scope of this book is immense, and the first several chapters can be a bit daunting. If you have the requisite stamina though, the payoff is enormously satisfying, presenting a comprehensive and firmly rooted model for IP. In the end, the challenge to dig deeper for IP's foundations is perhaps the most important takeaway. I highly recommend it.
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