Intellectual property, innovation, and social progress: The case against incentive based arguments
| Autor | Adam D. Moore |
| Cargo | Associate Professor of Philosophy, Department of Philosophy, Information School, Program on Values - University of Washington, U.S.A. |
| Páginas | 97-121 |
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Intellectual property, innovation, and
social progress: The case against
incentive based arguments*
ADAM D. MOORE
No one can doubt, that the convention for the distinction of property, and for
the stabi lity of possessi on, is of all cir cumstances the mo st necessary to the
establishment of human society, and that after the agreement for the fixing and
observing of this rule, there remains little or nothing to be done towards settling
a perfect harmony and concord.
David Hume, Treatise of Human Nature1
SUMARIO: l. lntroduction. A. What is Intellectual Property? ll. Utilitarian lncentive—based argu-
ments for intellectual Property: The internal critique. A. A General Overview ot Utilitarian Theory.
B. The Incentives Argument. C. Problems for the Incentive Argument. D. Alternatives to Patents. E.
Eliminating Patent Monopolies. F. Alternatives to Copyrights. G. Trade Secret and Social Utility.
lll. The Externa l Critiaue. A. The Proble m of Act Description. B. Adoption and Adherence. l V.
Conclusion
I. INTRODUCTION
Modern times have been marked by what may be described as an intellectual property
land grab. Recently there has been an alarming rush to patent human DNA.2 In particular,
what is patented are partial DNA sequence ESTs (expressed sequence tags) that s erve to
* Originalmente publicado en el Hamline Law Review. Se reproduce con expresa autorización de autor.
Parts of this paper appear in ADAM D. MOORE, INTELLECTUAL PROPERTY AND INFORMATION CONTROL: PHILOSOPHIC
FOUNDATIONS AND CONTEMPORARY ISSUES (2001) and Adam D. Moore, A Lockean Theory of Intellec tual
Property, 21 HAMLINE L. REV. 65 (1997). I would like to thank the editors at Transaction Publishing and
Hamline Law Review for allowing me to present this material here.
1 DAVID HUME, A TREATISE OF HUMAN NATURE (1739), reprinted in HUME’S MORAL AND POLITICAL PHILOSOPHY,
at 61 (Henry D. Aiken ed., Hafner Publ’g Co. 1948).
2 See James Meek, Why You Are First in the Great Gene Race: The Rush for Rights to Your Body is Under
Way and Already Patents Have Been Applied for on a Fantastic 127,000 Bits of Your Genes, GUARDIAN
SPECIAL SUPPLEMENT 4 (Nov. 15, 2000).
Anuario Andino de Derechos Intelectuales.
Año VII - N.º 7. Lima, 2011
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ANUARIO ANDINO DE DERECHOS INTELECTUALES
MARCO JURÍDICO GENERAL
distinguish one gene from another.3 Celera Corporation filed preliminary patents for 6500
partial DNA sequences.4 Several other companies followed suit.5
Internati onal treaties li ke the World Tra de Organization’s TRIPS (Trade Re lated
Aspects of Intellectu al Property) agreement have provided intel lectual property holders
with mechanisms to protect their holdings worldwide.6 Th ose countries that resist sign-
ing these treaties are excluded from profitable markets and are thus forced to consent to
a Western mo del. Books, movies, pl ays, music, and process es of manufacture are n ow
protected worldwide.
Government and corporate data mining activities have produced massive information
data files on most U.S. citizens. In the name of security or better profits, sensitive personal
information is h eld, sold, and traded as intang ible property. Moreover individ uals have
little control over these activities. In the area of personal information control, it seems as
if we are moving into an age of transparency.
While these examples may be alarming, some people claim that systems of intan-
gible property protection are necessary. Within the Anglo-American tradition, systems of
intangible pro perty protection are justifi ed because these models are supposed to bring
about social pr ogress. When compared to othe r sorts of models governing t he creation,
use, and control of intangible works, the system employed by the United States produces
more social utility – or so it is claimed. It is in the name of social progress that the U.S.
Constitution empowers the federal government to protect intellectual property. “The Con-
gress shall have th e Power . . . [t]o promote the Progres s of Science and useful Arts, by
securing for limited Times to Authors and Inventors the exclusive Right to their respective
Writings and Discoveries.”7
After a brief introduction to the subject matter of intellectual property, an internal
and external critique of Anglo-American systems of intellectua l property protection will
be offered.8 Internally, it will be argued that incentive-based social progress justifications
3 For an in-dep th analysis of many of the issues that surround patenting ESTs, see Molly A. Holman &
Steven R. Munzer, Intellectual Prop erty Rights in Genes and Gene Fragments: A Registratio n Solution
for Expressed Sequence Tags, 85 IOWA L. REV. 735 (2000).
4 See This Week on Science Friday: Patenting DNA (National Public Radio broadcast, Oct. 29, 1999), http://
www.sciencefriday.com/pages/1999/Oct/hour1_102999.html. A preliminary patent allows the owner a year
to decide if the intellectual work in question is worth patenting. See 35 U.S.C. § 111(b) (2000) (describing
provisional patent applications).
5 For example, Athersys, I nc. and Human Genome Sciences, Inc. h ave also filed for preliminary patents .
See Reuters Online Service, Company Says It Filed 10,000 Gene Patents (Feb. 16, 2000), at http://www.
netlink.de/gen/Zeitung/2000/000216.html.
6 See Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, April 15,
1994, Annex IC: Agreement on Trade-Related Aspects of Intellectual Property Rights, reprinted in THE
LEGAL TEXTS: THE RESULTS OF THE URUGUAY ROUND OF MULTILATERAL TRADE NEGOTIATIONS 321 (World Trade
Org. ed., Cambridge Univ. Press 1999). See also Marci Hamilton, The TRIPS Agreement: I mperialistic,
Outdated, and Overprotective, in IN TELLECTUAL PROPERTY: MORAL, LEGAL, AND INTERNATIONAL DILEMMAS
243 (Adam D. Moore ed., 1997).
7 U.S. CONST. art. I, § 8, cl. 1, 8.
8 See infra notes 28-113 and accompanying text.
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