Private property rights, argue personality theorists, should be recognized when (and only when) they would promote human flourishing by protecting or fostering fundamental human needs or interests. The first step in the application of this perspective to intellectual property is identification of the specific needs or interests one wishes to promote. As Jeremy Waldron has argued, a wide variety of interests might be deemed fundamental, each of which arguably could be advanced by a system of property rights:
1.Peace of Mind. An
exclusive right to determine how certain resources shall be used
might be thought
essential to avoid moral exhaustion -- the sense of guilt that arises
from awareness
that one's actions, one's use of the commons, disadvantages countless
other people.
2.Privacy. Property
rights may be necessary to provide persons "refuge[s] from the
general society
of mankind" -- places where they can either be alone or enjoy intimacy
with others.
3.Self-Reliance. An
exclusive right to control certain resources may be thought necessary
to enable persons
to become independent, self-directing.
4.Self-Realization as
a Social Being. The freedom to own and thus trade things may be
necessary to
enable persons to help shape their social environments and establish their
places in communities.
5.Self-Realization as
an Individual. Ownership of property may be necessary to enable
a person to
assert his or her will and to be recognized as a free agent by others.
6.Security and leisure.
Control over a certain amount of resources may be necessary to
free a person
from obsession with obtaining the means of survival, the "impulsion of
desire,"
and thus to
enable them to attend to higher pursuits.
7.Responsibility.
Virtues like "prudence," self-direction, and foresight may be cultivated
by the opportunity
and obligation to manage one's own resources.
8.Identity. Selfhood
may be thought to depend upon the ability to project a continuing
life plan into
the future, which is turn is fostered by connection to and responsibility
for
property.
9.Citizenship. Ownership
of a certain amount of resources might be thought necessary
to put a person
in an economic and psychological position to participate effectively in
the polity.
10.Benevolence. Property
rights may be thought essential to enable a person to express
ideas of what
is beautiful or to enact benevolent wishes.
Six of these ten arguments -- 1, 3, 4, 6, 7, 9 -- provide, at most,
weak support for a system of intellectual-property rights. To the extent
that intellectual-property rights have economic value and may be bought
and sold, gained and lost, they may contribute to their owners' abilities
to avoid guilt, become autonomous, engage in independent political action,
etc. But those values could be promoted equally well by providing persons
property interests in land or shares in private
corporations. Nothing turns on the fact that the entitlements pertain
to intellectual products.
Personhood-based justifications for intellectual-property rights thus must be found, if anywhere, in some combination of themes 2, 5, 8, and 10: the interests of privacy; individual self-realization; identity; and benevolence. But the writers who have sought to extract from those sources answers to specific questions have come to widely divergent conclusions. Some examples:
When an author
has revealed her work to the world, does it nevertheless continue to fall
within the zone
of her "personhood" -- so that she may legitimately claim a right to restrict
its
further communication?
Neil Netanel, relying on an exploration of the ideal of "autonomy,"
thinks yes.
Lloyd Weinreb, reasoning that, "once the individual has communicated her
expression publicly,
it takes on a 'life of its own' and . . . its further communication does
not involve
her autonomous self," thinks no.
Assume the answer
is to the previous question is yes. May the author alienate his right to
control the
copying of his work? Kant, reasoning that "an author's interest in deciding
how
and when to
speak [is] an inalienable part of his personality," thought no; Hegel,
reasoning
that expressions
of mental aptitudes (as opposed to the aptitudes themselves) were
"external to
the author and therefore freely alienable," thought yes.
Should an artist's
investment of his self in a work of visual art (say, a painting or sculpture)
prevent others
from imitating his creation? Hegel thought no -- on the ground that the
copy
would be "essentially
a product of the copyist's own mental and technical ability." Justin
Hughes seems
to take the opposite position.
Is the protection
of trade secrets necessary to protect privacy interests? Edwin Hettinger
thinks no --
on the ground that most trade secrets are owned by corporations, which
do not
have the "personal
features privacy is intended to protect"; Lynn Sharp Paine, disagrees,
arguing that
the right to privacy includes the freedom to reveal information to a limited
circle
of friends or
associates without fear that it will be exposed to the world -- a freedom
that
trade-secret
law shields.
Is a celebrity's
persona a sufficiently important repository of selfhood that other persons
ought not be
permitted to exploit that persona commercially without permission? Justin
Hughes suggests
yes, reasoning that "[a]s long as an individual identifies with his personal
image, he will
have a personality stake in that image." Michael Madow, insisting that
the
"creative (and
autonomous) role of the media and the audience in the meaning-making
process" are
at least as important as the "personality" of the celebrity, sharply disagrees.
Two related problems underlie these and many other disagreements among personality theorists. First, the conception of the self -- the image of "personhood" that, through adjustments of intellectual-property doctrine, we are trying to nurture or protect -- is too abstract and thin to provide answers to many specific questions. Either a more fully articulated vision of human nature (that would forthrightly address such grand questions as the importance of creativity to the soul) or a conception of personhood tied more tightly to a particular culture and time seem necessary if we are to provide lawmakers guidance on the kinds of issue that beset them.
Second, no personality theorist has yet dealt adequately with what Margaret Radin calls the problem of fetishism. Which of the many tastes exhibited by current members of American culture should be indulged, and which should not? The quest for individuality? Nationalism? Nostalgia for a real or imagined ethnic or racial identity? The hope that audiences will treat one's creations with respect? The hunger for fifteen minutes (or more) of fame? Yearnings or orientations of all of these sorts are implicated by intellectual-property disputes. Deciding which merit our deference is essential to determining how those disputes should be resolved.