Eric R. Claeys (George Mason University) has posted Intellectual Property and Practical Reason (Jurisprudence, Forthcoming) on SSRN. Here is the abstract:
In scholarship on intellectual property (‘IP’), philosophical justifications for IP rights seem to suffer from one of two flaws. To some, philosophical justifications are too indeterminate to offer concrete guidance about rights in practice. To others, philosophical justifications seem extreme; they mandate certain conclusions without letting decision makers consider the relevant context or consequences of different IP rights. Both impressions neglect an important dimension of moral reasoning about rights — practical reason. In perfectionist theories of law, ‘practical reason’ describes the principles by which general justifications for moral rights are implemented in specific decisions in law and ethics. This Article introduces practical reason to IP scholarship, and shows how it facilitates reasoning about the context of different IP rights. The Article shows how principles of practical reason might apply to patent’s novelty requirement, copyright’s originality requirement, copyright’s idea-expression distinction, and the duration requirements for various forms of intellectual property.