Journal of Intellectual Property Law & Practice, 2014, Vol. 9, No.
4 GUEST EDITORIAL
Guest Editorial
Theories of intellectual property: Is it
worth the effort?
Neil Wilkof*
Should one care about theories of intellectual property?
A decade ago, Professor William Fisher, of Harvard Uni-
versity, made a challenging attempt to answer “yes”, in a
book chapter entitled “Theories of Intellectual Property”.
While never quite distinguishing between a philosophy,
an approach, and a theory of intellectual property, Fisher
identifies four analytical constructs, which we will call
“theories”, namely—(i) utilitarian for maximizing net
social value, (ii) Lockean (one has the right to the fruits of
his intellectual labour); (iii) protection of personality in
works; and (iv) fostering a just and attractive culture.
The utilitarian theory applies economic constructs to
propose how intellectual property rights can achieve the
Benthamite ideal of “the greatest good for the greatest
number.” Cloaked in the more current notion of “wealth-
maximization”, the focus is how to balance the social costs
and benefits associated with giving legal effect to IP laws
and rules. While the theory has produced various elegant
propositions on how to conceive of this balance, it has
proved to be devilishly difficult to create robust ways to
measure inputs, outputs and process.
The labour theory seeks to apply the seminal rationale
of John Locke regarding property rights. Locke asserted
that a person enjoys a natural right in the fruits of his
labour in transforming raw materials (viewed as including,
eg facts and concepts) that are “held in common” into a
finished product of enhanced value, and the state has a
duty to enforce the natural right that derives from the
labour. The principal problem with applying this theory is
that it does not self-explain why labour added to a re-
source “held in common” should entitle one to a property
right in such resource; if “yes”, what is meant by “intellec-
tual labour” and “held in common”; and how far should
one’s rights go in the fruits of his labour (as Robert Nozick
observed, “if I pour my can of tomato juice into the ocean,
do I own the ocean?”). As a result, seeking to apply the
Lockean approach of property must inevitably end in po-
tentially unmanageable analytical uncertainty.
The personality theory is described by Fisher as justi-
fying property rights “when and only when they would
* Email: wilkof@bressler.co.il
# The Author(s) (2014). Published by Oxford University Press. All rights reserved.
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promote human flourishing by protecting or fostering
fundamental human needs or interests.” Here, as well, in-
determinacy reigns: how can we identify the needs or inter-
ests to be promoted? Fisher identifies four such needs or
interests appropriate for intellectual property: privacy,
individual self-realization; identity; and benevolence.
However, there is no agreement on how to apply to them.
For instance, is protection of trade secrets “necessary” to
protect interests of privacy? Some say “yes” (a right of
privacy extends to the freedom to disclose to a limited
circle of friends without the fear that it will be disclosed to
the entire world), while others say “no” (since most trade
secrets are owned by corporations, that do not have the
“personal features” that privacy is intended to protect).
The final theory has less of an established foundation
(“an eclectic cluster of political and legal theorists” from
Jefferson to the present). Called “social planning theory”, it
differs from utilitarian theory in that it seeks to go beyond
the notion of “social welfare” to a much broader vision of
society serviced by intellectual property. An example given
is Neil Netanel’s view of copyright as intending to serve “a
robust, participatory, and pluralist civil society,” where
“unions, churches, political and social movements, civic
and neighborhood associations, schools of thought, and
educational institutions” abound. The problem with this
theory is that does not, and cannot, achieve agreement on
what are the goals that such “social planning” seeks to
achieve. As such, it too is inadequate.
When all is said and done, Fisher still resists throwing
up his rhetorical hands. If none of these theories can really
provide a one-stop shop for conceiving intellectual prop-
erty, they still are valuable. In Fisher’s words, “they can
catalyze useful conversations among the various people
and institutions responsible for shaping the law”, can
“improve conversations between lawmakers and their con-
stituents”, and “through continued conversations, there
may lie some hope of addressing the inadequacies of the
existing theories.” The reader can decide whether achieving
such “conversation” merits the effort of seeking to develop
“theories” of intellectual property.
doi:10.1093/jiplp/jpu018
Advance Access publication on 25 February 2014