Shlomit Yanisky-Ravid, ‘The Hidden Though Flourishing Justification Of Intellectual Property Laws: Distributive Justice, National Versus International Approaches’

Traditionally, there are three main theoretical justifications for intellectual property: law and economics theory, personality theory, and Lockean labor theory. This traditional discourse, however, misses almost entirely a different theoretical basis – that of distributive justice. Distributive justice, stemming from John Rawls’s theory of justice, as a stand-alone justification for intellectual property laws, is presently almost entirely over-looked if not actively suppressed. In this Article, I argue that intellectual property laws, when initially designed, embodied distributive justice principles. Only later, with encouragement from interested parties, it became an economic interpretation adopted as the ‘only’ proper interpretation. While scholars, such as Professor Amy Kapczynski, have described the solid interaction between distributive justice principles and intellectual property regimes as either ‘externalist’ (contradicting values without any overlaps) or ‘internalist’ (built into intellectual property norms, such as fair use), this Article suggests a new, third approach. I claim that the interoperation given by policy makers modified the intellectual property laws within the spectrum between internalist and externalist. This Article presents the argument that intellectual property laws, when ‘created’, incorporated distributive principles. Subsequently, when national courts and policy makers adopted the law and economics approach, they modified intellectual property laws by employing efficiency reasoning in the interpretation of those laws, preferring the law and economics justification to a distributive justice approach, resulting in less egalitarian outcomes. I further argue that the means to achieve distributive justice goals embrace not only general laws that were primarily and explicitly designed to reduce inequality in society, such as progressive tax laws and social welfare programs, but also specific laws, such as intellectual property laws.

This Article then argues that, in contrast to the national discourse regarding intellectual property, contemporary international intellectual property tools currently being enacted or negotiated by the World Intellectual Property Organization (WIPO), have explicitly adopted distributive justice as their main goal.

Three important international tools are discussed in this Article. The first is the Marrakesh Treaty, WIPO’s International Instrument on Limitations and Exceptions for Visually Impaired Persons. The second is the ongoing negotiations concerning an international tool regarding traditional knowledge. The third is a new WIPO initiative called Search-Sharing Innovation in the Fight Against Neglected Tropical Diseases, which creates a global consortium through which member states and private and public entities can share knowledge, promote research, and make products available royalty-free to the less developed countries, thereby giving them access to information and medicines. In the international intellectual property context, the distributive justice concept is crucial to individuals, groups, and countries, as it allows access to knowledge and other humanitarian aid, benefitting millions of people. Unless distributive justice principles are adopted, those who need this access, mainly in developing countries, will be left behind in the wake of the world’s rapidly advancing developments. This Article argues that, by shifting from this national law and economics perspective to a distributive justice perspective (as is being implemented in those international tools), US policy makers can attain positive outcomes from the intellectual property regime for the entire population by better allocating intellectual property benefits and extending access to knowledge to broader groups. I conclude that the international point of view could serve as inspiration to US lawmakers to rethink US intellectual property laws. This is true especially considering twenty individuals hold more capital than half of the entire population and the inequality of ownership of resources increases progressively.

Shlomit Yanisky-Ravid, The Hidden Though Flourishing Justification Of Intellectual Property Laws: Distributive Justice, National Versus International Approaches, Lewis and Clark Law Review vol 21:1 (2017).

First posted 2017-03-20 15:12:20

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