Merges on Just IP
Are IP Rights Basic?
This chapter criticizes Robert Merges’s attempts to show that current IP law is just on Rawls’ politically liberal theory of justice as fairness. Merges argues that IP law is just because IP rights are basic rights that enjoy a priority over distributive concerns and, therefore, that the inequalities created by the current IP system are irrelevant to whether it is just. IP rights are basic, he says, because they are necessary to provide the career options for creative professionals that would further their autonomy and self-ownership. But such a strong right to an occupation is not necessary to the exercise and development of the moral powers necessary for social cooperation which, on Rawls’s view, is a necessary condition for basic rights. So, IP rights are not basic rights on Rawls’s view. This chapter suggests that, at most, a very small subset of current IP rights would qualify as basic within a politically liberal IP regime because a strong set of IP rights would generate inequalities that would strain people’s commitment to society and to its IP rules. Most IP law would, thus, need to satisfy a principle of distribution in order to be just.
Gregory Hagen is an Associate Professor of Law at the University of Calgary. He earned an LLB at Dalhousie Law School. After being called to the Bar of British Columbia, he practiced in the areas of corporate, securities, intellectual property, and technology law. Later he earned an LLM (concentration in technology law) at the University of Ottawa. He has been a Visiting Professor at Duke University’s Asia America Institute in Transnational Law at the University of Hong Kong and at the Faculty of Law, University of Ghana. His research focuses on technology and intellectual property law, and his areas of interest also include legal and political philosophy, philosophy of science, and science policy. Prior to entering the field of law, Greg Hagen earned his PhD in the philosophy of science at the University of Western Ontario. Greg is presently doing research on ethical and legal issues concerning synthetic biology as a co-investigator in the PhytoMetaSyn project. He is also a co-investigator on Rethinking Processual Law: Towards a Cyberjustice, which will study and create new procedural models utilizing the Cyberjustice Laboratory at the Université de Montréal’s Centre de Recherche en Droit Public.