Jonathan Masur on Rob Merges' "Justifying Intellectual Property"

The New Institutional Philosophy of Rob Merges
Jonathan Masur
January 29, 2013

In Justifying Intellectual Property, Rob Merges has written one of the most sweeping, significant, and brilliant books about intellectual property to be published in years.  The importance of the book is only accentuated by the identity of the author.  Merges is, of course, one of the godfathers of the institutional economics approach to intellectual property law, so this book conjures up the image of Richard Posner arguing that contract and tort law are fundamentally grounded in theories of fairness and distributive justice.  Merges’ book is an ideal candidate for a book club such as this one because it covers so much ground and does so with a great deal of nuance and careful detail.  This post will only scratch at one corner of Merges’ masterpiece, and I look forward to reading the perspectives of others as well.  Many thanks to Matt Bodie for organizing this club and to Prawfsblawg for hosting it.

Justifying Intellectual Property is a tremendous achievement in large part because it succeeds in adducing a fully compelling non-economic justification for intellectual property rights.  When Merges argues that he can arrive at the midlevel principles that animate central IP doctrines using Locke, Kant, and Rawls, he is highly persuasive.  The antecedent question, which I hope to explore, is what has catalyzed this approach.  Merges notes throughout the book that for an economic justification for intellectual property, the evidence is not there:  based on existing empirical findings, there is at least as much reason to believe that intellectual property has hampered innovation as that it has advanced it.  That is a fair characterization.  But note the type of argument being made.  It is not the case, and Merges correctly does not assert, that IP’s midlevel principles cannot be justified with economic theory.  Such a justification would not be difficult: nonremoval, proportionality, and efficiency are core ideas of an economic theory of intellectual property—efficiency, as Merges notes, might be the foundational principle, with nonremoval and proportionality two of the crucial midlevel principles.  The only principle that is missing from standard economic accounts is dignity, unless it is thought of in human welfare terms (which perhaps it should be).  But dignity plays a much smaller role in IP doctrine than the other three midlevel principles.  This is particularly true in the United States, where artists and creators have fewer moral rights than they do in European jurisdictions.  And it is true as well for patent law, where one will struggle to locate an important doctrine that appears to be grounded primarily in a concern for human dignity.  When it comes to dignity considerations in IP, it is not clear how great the need for justification really is.

Jonathan Masur