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Justifying Intellectual Property Hardcover – May 16, 2011
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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)
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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.Read more ›
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.