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Wednesday, January 30, 2013

More on Rawls and Intellectual Property


It goes without saying that the people in this "book club" are big fans of Justifying Intellectual Property – and posts are now coming fast enough that my own contribution will seem to reach back to the earliest discussions here.   I found Oren Bracha's post about mid-level principles quite interesting – and a part of Merges' book worthy of its own conference, blog, and seminar series.  Those of us who have worked in Washington know that the problem is not getting people to focus on the choice between mid-level or fundamental principles, but simply to get recognition that whatever the slogan du jour is, a bumper sticker not a philosophy.

But I'd like to return to the Gordon-Merges interchange on Rawls.

I agree with Rob's post that Rawls was initially tepid about private property rights; in Theory of Justice Rawls was very explicit that he believes his principles of justice would work with different ideological views of private property.  (The book was, after all, a product of its time -- when it was unclear that Westerm capitalism would be the "winner".)  Later in life, Rawls advocated private property, particularly where "background institutions of property-owning democracy work to disperse the ownership of wealth and capital"; he saw this as important to "prevent a small part of society from controlling the economy, and indirectly, political life as well." John Rawls, Justice as Fairness: A Restatement (Erin Kelly, ed., 2001) §42.3 at 139


In her thoughtful post, Wendy Gordon wrote that "it’s far from clear that the worst-off benefit from the restraints that patent and copyright  impose on the use of inventions and works of authorship."  Just to be clear – and I know Wendy knows – the argument is not that they benefit from the *restraints*; the argument is that they benefit from the *outcomes* of the *incentives* and that these benefits are enhanced by limiting the incentives (that is, limiting the restraints).   There are serious and profound issues over access to patented medicines, but that should not blind us to the fact that 10% or less of the drugs on the WHO organization's essential medicines list are now generic and off-patent.  (The relationship of the WHO list to patented compounds is itself contested, deserving a long post for even-handed treatment.)

Let me try to approach what I think is Rob Merges' point about Rawls from another direction.  It is hard to think how Rawls' Difference Principle would work except through incentive mechanisms like we have now, including intellectual property.  Under the Difference Principle, if an individual does something to make humans better off, particularly those in the worst-off class, then we give that individual a little more than everyone else.  If the individual were Samson and he kept the roof from falling instead of bringing it down, the Difference Principle would say it's fine to reward him (particularly if the roof was that of a homeless shelter, not Saks Fifth Avenue).   But unlike Samson, most of us will make the lives of others better – if we do at all -- through informational, organizational, and leadership contributions.  I would conjecture that many of examples that spring to mind for philosophy teachers when they are trying to explain how the difference principle works are related to IP --  Jonas Salk, Bill Gates, Walt Disney, etc.  (And many would be related to the application of organizational and leadership contributions -- know-how, if you will.  That would be the path to justify differential wages within corporations, government agencies, and non-profits.)

One of Wendy Gordon's point is that we cannot know we would not have these least-advantaged enhancing contributions without IP:  on that point she is completely right.  Her point applies to *any* differential outcome we would try to justify with the Difference Principle.   It's possible that the team that turned around GM would have done so for fun or glory and need not be paid a cent more than the people on the assembly line.  It's possible that they would have done it in complete anonymity and without a stitch of glory.   But if there were no financial or reputational incentives, it's also possible they would have stayed home or just worked 9 to 5.  So, whenever you use the Difference Principle, you are riding on your hunches of how the counterfactual would turn out without the "difference" you seek to justify.

My hunch – and I think Rob Merges' – is that financial incentives/differences are needed for a large chunk of the informational, organizational, and leadership contributions that make the worst-off better off.   Of course, financial incentives/differences can be provided in different ways – there is a vast literature on patent prizes and a vast world of grant giving for inventors and artists.  But it is also important to recognize that a big chunk of the information contributions that will make the worst-off better off cannot be identified in advance – that's one reason that the disaggregated decision-making of a property system is preferable to the more centralized decision system of grants or even prizes. (What government body would have established a huge prize for "social media"?)

As to Wendy's more fundamental point – maybe the worst-off would be better off with "OTHER and DIFFERENT advantages," that is completely legitimate too.  It's easy to think that people would be better off reading old classics in the public domain than watching new television shows.   But that gets into deeper questions as to how we will measure "better-offness" . . . . .


But I want to return to a different point Rob Merges raised in his interchange with Wendy Gordon – ideas with which he and I have been puttering around.   An important part of Rawls' structure is the second principle's requirement that "offices and positions must be open to everyone under conditions of fair equality of opportunity," -- meaning not just formal positions, but stations in life.  Rawls elaborated his notion of the "primary goods" that would come from offices and positions to include "income and wealth, understood as all-purpose means" as well as "the social bases of self-respect."

I think it is clear to everyone reading this that no modern society truly meets this standard, but I think that Rawls' principle that "offices and positions must be open to everyone under conditions of fair equality of opportunity" is captured by what we refer to as the "American dream."  And *if* offices, stations, and positions in life are going to be open to all, then we must have mechanisms for that to happen.  Excellent public schools in all neighborhoods, meritocratic university admissions, and maybe even term limits on elected office seem to me social elements needed to operationalize the principle. 

In a capitalist economy founded on private property, there is no question that social station ("office") depends partially on wealth, so we need mechanisms for capital accumulation that do not depend on inherited wealth, i.e. "open" channels that allow people to go from ZERO to any social station/wealth level.   Again, think of Rawls' concern that a "property-owning democracy work to disperse the ownership of wealth and capital."

Wendy writes that "we need data on whether there are alternative incentives to write soap operas and invent air conditioning" – and, again, she is certainly right.  But it is not just a question of whether these things will be created; there is also the question whether there is fair opportunity to occupy the positions that permit such creativity.  If you look at the wealthiest African-Americans – as Rob and I have – you are struck by the fact that the vast majority of them accumulated their wealth through intellectual property – a much larger percentage than the corresponding list of white Americans.   This is not to deny that the legal system has often deprived African-Americans of their legal right to intellectual property and its proceeds (just as it often deprived them of other rights).  But those very real injustices should not prevent an inquiry into how intellectual property can literally "reify" – and capitalize – talents and skills of otherwise disadvantaged citizens and, thereby, *help* keep (or make) "offices and positions . . . open to everyone under conditions of fair equality of opportunity."  

Again, this doesn't mean that there are not alternative ways to make and keep " offices and positions . . . open to everyone under conditions of fair equality of opportunity," but *if* intellectual property seems to be such a mechanism and *if* better mechanisms have little or no chance in the political environment, then that is something we need to consider seriously in what Amartya Sen would call the "nyaya" quest to improve practically peoples' lives.

Posted by Justin Hughes on January 30, 2013 at 04:43 PM | Permalink


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Posted by: kalpanaceo | Feb 6, 2013 2:09:37 AM

Going back to what I said at the beginning of my post, Rawls initially believed that his principles were compatible with different arrangements in terms of what property rights people had -- so it might not be a goal in a Rawlsian framework to "establish that establishing robust intellectual property protections is a requirement of justice" -- particularly not in terms of the idealized project that starts with the original position. On the other hand, Rawls later concluded that "the first principle of justice includes a right to private personal property" but that did not include property rights in "productive assets." Restatement, section 42.1 at 138. He advocated "widespread ownership of productive assets" (section 42.3) and was fine with private property ownership of productive assets subject to an effective way to meet the principles of justice (section 52.1). I don't see anything in Rawls that would give us clarity as to whether he would have considered IP assets as "productive assets" -- my guess is that it depends on what IP-protected thing we are discussing.

So, I think that Rawls would certainly agree with you that it seems "plausible that the intellectual property regime we have could be a component of a just society/basic structure." Personally, I am interested in how properly calibrated intellectual property may help operationalize the first element of the second principle, i.e "offices and positions . . . open to everyone under conditions of fair equality of opportunity."

Posted by: Justin Hughes | Jan 30, 2013 11:48:19 PM

Aside from the merits of the substantive arguments about IP espoused in this exchange (and the book), I have some difficulties with Merges’s argument and this qua interpretation of Rawls. This isn’t fatal—the main justifications in the book don’t much depend on whether Merges presents a thoroughgoing Rawlsian case. However, I think the discussion so far risks making a mistake that plagues many attempts to co-opt Rawls into debates about legal theory.

The mistake is this: the principles of justice underdetermine the form that specific institutions should take in a just society. For Rawls, justice is appraised at the level of the basic structure of society, which includes a myriad of social and political institutions. It seems to me plausible that the intellectual property regime we have could be a component of a just society/basic structure. I can also envision a just society that has a very different intellectual property regime than the one we have, and perhaps no protection for intellectual property whatsoever.

The arguments made so far in this exchange don’t establish that establishing robust intellectual property protections is a requirement of justice. As the original post in the thread noted, many of the arguments turn on empirical questions that are difficult (if not impossible) to answer. That alone should lead us to question whether intellectual property is internally connected to justice.

Also, I’m surprised that no one has mentioned Nagel and Murphy yet. They present a (plausibly) Rawlsian interpretation of property rights, and their presentation would be very much at odds with the views espoused here or in Justifying Intellectual Property.

Posted by: Stephen G. | Jan 30, 2013 5:17:24 PM

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