Intellectual Property: Moral, Legal, and International Dilemmas.
Philosophy and the Global Context Series. Lanham, Md.: Rowman and
Littlefield, 1997. xi + 387 pp. Bibliographical references and index. $58.00
(cloth), ISBN 0-8476-8427-X ISBN 0-8476-8426-1; $22.95 (paper), ISBN .
Tamsen Valoir , Baker & Botts, L.L.P.
title of this anthology is somewhat misleading, for it has little to do with
legal or international issues important in patent law. It does not, for
example, consider the implications of life plus 50 versus life plus
seventy-five years of copyright protection, the ramifications of "le droite
moral," or the effects of publication at 18 months on the small American
inventor. Instead, the anthology is largely about the theoretical
justifications for intellectual property and avoids contemplating the
detailed issues that must be debated as we proceed toward an increasingly
global economy and harmonization of intellectual property laws.
However, aside from the somewhat misleading title, it is a useful
contribution to the literature of the jurisprudential foundations of
intellectual property regimes. The selected essays are notable in their
diversity, both of viewpoint and of writing styles. Contributions range from
the heavy, pedantic style of legal philosophers, such as James W. Child
(what do "compossible, pareto-superior, conative, conflate and hypostatized"
mean anyway?) to the pragmatic, amusing style of Grateful Dead lyricist and
co-founder of the Electronic Frontier Foundation, John Perry Barlow.
Fortunately, the philosophies of the contributors also diverge and a
multiplicity of viewpoints are presented. For the legal philosopher, the
book is a valuable, interesting compendium of traditional, contemporary and
occasionally radical thought.
Although the book largely deals with the rational basis for protecting
ephemeral property, there are a couple of essays that consider other issues.
One essay is titled "Are Computer Hacker Break-ins Ethical?" by Eugene H.
Spafford and seems out of place in this anthology. The other is "National
and International Copyright Liability for Electronic System Operators" by
Charles J. Meyers. This essay is also an unusual selection for the
anthology, but is most notable for confusing contributory infringement with
vicarious infringement. Id.
at 328 (misreading the Supreme Court case Universal City Studios v. Sony
Corp.). It's amazing that an essay could be published twice with
these two types of infringement reversed, particularly where the author gets
it right in subsequent paragraphs.
introduction by Adam D. Moore is typical fare, with the obligatory
introduction to intellectual property stating the usual inaccuracies about
intellectual property law. For example, the author, like many, erroneously
states that a patent provides a "twenty-year exclusive monopoly" over the
protected work allowing the holder to protect the "the totality of the
idea." Id. at 5. Of course what the patentee really holds is a right to
prevent others from making, using or selling her invention. The inventor may
not necessarily be able to practice her own invention, which depends on the
lack of any broader patents in the field. The brief summation of
intellectual property follows with introductory paragraphs about each essay
which were too perfunctory to be of value, although one could say the same
of this review.
essays themselves are presented in a logical sequence. One of the most
attractive features of the book is the point/counterpoint presentation of
essays. One author presents an essay and the next author responds directly
to the first author's arguments. This is a particularly effective tool that
helps to clarify the issues for the reader and makes the debate more
interesting. This technique could be applied more often with good effect.
initial essay by Edwin C. Hettinger considers all of the usual
justifications of intellectual property and concludes that justifying
intellectual property is a formidable task because "ideas" can be used by
many without restricting their use by the originator. Therefore, there
really is little need to protect ideas. The author settles on the usual
argument for intellectual property protection, that it stimulates the
dissemination and use of information. Of the various types of protection,
the author concludes that copyright is the least harmful, followed by
patents, then trade secrets. Patents prevent the use of an idea, unlike
copyright which prevents only direct copying or plagiarism. Trade secrets
are even more suspect, because at least patents provide for the disclosure
of ideas, unlike trade secrets which by definition do not.
subsequent essay by Lynn Sharp Paine takes issue with Hettinger's
assumptions about trade secrets. Trade secrets, she asserts, are not founded
on the utilitarian justification proposed by Hettinger, a justification
under which trade secrets suffer criticism since no disclosure of ideas
occurs as compensation for their legal protection. Rather, trade secrets are
founded on privacy concerns. She believes that everyone has the right to
determine when and to whom an idea will be disclosed. Further, involuntary
disclosures based on deceit, coercion and theft of documents should not be
condoned nor result in a forfeiture of one's ideas. Paine's essay is well
written and as a counterpoint to Hettinger's essay provides much useful
insight into various rationales for the protection of intellectual property.
next essay, by James W. Child, is written in a portentous style that assumes
significant familiarity with philosophy, including the prominent philosopher
Locke. I find it unlikely that the essay will be of significant interest or
comprehension to the average reader, although the jurisprudentialist or law
review editor will no doubt enjoy wading through it. To be fair, the initial
essay by Child prepares the reader for the subsequent essays by Adam D.
Moore, Justin Hughes and Tom G. Palmer, all of which raise interesting
questions about intellectual property.
example, Palmer notes that being the first to market may be more valuable
than patent protection, particularly in industries where technical
innovation is both incremental and fast. He notes that patents may be most
effective in the drug industry where the Food and Drug Administration, which
requires early publication of information on new drugs prior to their
approval, prevents producers from surprising the market with new products.
This idea is supported by a study that sampled 100 firms and 12 industries.
Id. at 210.
Palmer and John Perry Barlow consider the possibility that copyright
protection is rapidly becoming outdated in the emerging information age and
instantaneous access of the Internet. Palmer, for example, asks, "If laws
are dependent for their emergence and validation upon technological
innovations, might not succeeding innovations require that those very laws
pass back out of existence?" Id. at 188. The authors consider alternate
methods of ensuring that sufficient incentive exists to ensure that new
creative works are created and disseminated. With respect to software, for
example, the work, although easily copied, is marketed with other desirable
goods such as manuals, services, regular updates, and so on. The consumer,
although easily able to obtain a pirated copy of the work, is motivated to
obtain a legitimate copy and the support services which accompany it.
A. Hamilton brazenly asserts that TRIPS, the Trade Related Aspects of
Intellectual Property Rights of the WTO/GATT agreement, is one of the "most
effective vehicles of Western Imperialism in history." Id. at 243. What
follows is an interesting article about the ever-reaching tentacles of
copyright law. Technology, Hamilton asserts, enables the copyright owner to
reach into the "free use zone," charging users for traditionally free
activities such as browsing, borrowing, fair use and personal use or
personal lending. A properly crafted free use zone would retain these rights
for users and maintain the balance of rights between the users and the
Richard Stallman and John Perry Barlow, as programmers, provide a refreshing
viewpoint on the issue of copyright, particularly as applied to software and
other works on electronic media. Neither believe that copyright has
continued value in the electronic age. Although perhaps not as rigorously
logical as some academic authors, these writers have a unique viewpoint and
write from their personal feelings and experience. The writing is clear,
concise and enjoyable and, although lacking in supporting footnotes, well
Call Number: K1401 .I558 1997
Intellectual property -- Moral and ethical aspects
Copyright -- Computer programs
Citation: Tamsen Valoir . "Review of Adam D. Moore, ed, Intellectual
Property: Moral, Legal, and International Dilemmas," H-Law, H-Net Reviews,
July, 1997. URL:
“Moore brings together articles by philosophers, legal
theorists, and scholars addressing the basic questions about intellectual
property: Can abstract ideas be owned? How does violation of
intellectual-property rights compare to the violation of physical-property
rights? How should legal systems accommodate the ownership of intellectual
property in an Information Age?”
Cathleen Bourdon, review of Intellectual Property:
Moral, Legal, and International Dilemmas, by Adam D. Moore, ed.,
American Libraries 28 (October 1997): 85.