Tuesday, July 23, 2013
Readers may remember my posting about the great symposium on "Intellectual Property and Religious Thought" at St. Thomas in April. Papers from it, which are forthcoming in the University of St. Thomas Law Journal, are beginning to appear in draft form on SSRN. The symposium took up a wide range of issues, from the basic question how far ideas can be owned or "sequestered" (Paul Griffiths argued that in the classic early-modern Catholic intellectual tradition they cannot), to issues concerning new technology and social justice (human gene patents, patented seeds and their effect on farmers), to the role of social relationships and communities in innovation and creativity.
Perhaps unsurprisingly, a recurrent theme was that intellectual property, like many other areas of law, has become so obssessed with rights, and with the supposedly magical qualities of market transactions, that it has neglected the common good and the duties/responsibilities that society may properly demand of property holders. A couple papers in this vein have been posted on SSRN:
Alina Ng (MIssissippi College), "Finding Copyright's Core Content"; here's an excerpt from the abstract:
Framing the analysis of copyright laws within consequentialist frameworks as intellectual property scholars have conventionally tended to do, while important in studying the consequences of laws from a socio-economic perspective, has not yielded satisfactory answers to a more fundamental question about the proper content and scope of copyright laws. For many communities and societies with increasing humanistic interests and goals, this question about the law’s proper content is a perennial one. To answer this question, this paper draws from two sources. First, legal theories on natural law, which require as a general rule that man-made laws satisfy an objective moral standard, support a proposition that copyright laws have essential moral content that may be identified through reason. Second, catholic social teachings on the common good, respect for the life and dignity of the human person, and correlation of rights and responsibility offer a framework to inform and shape appropriate copyright laws and policies. This paper proposes that for the progress of science to be sustained, the core content of copyright laws must protect the conditions that contribute towards authentic forms of authorship and support the flourishing and thriving of relationship-oriented communities.
Shubha Ghosh (U Wisconsin), "Duties, Consequences, and Intellectual Property":
Drawing on Amartya Sen's discussion of The Bhagavad Gita and Hindu concepts of justice (niti and nyaya), this paper examines ethical issues related to the construction of intellectual property policy. The author analyzes deontic, or duty based, and consequentialist theories of law within the context of the debate between Arjuna and Krishna in The Gita. With respect to intellectual property, the author proposes a consequentialist theory of intellectual property based on the duties owed by an owner to other persons. This ethical theory is illustrated through the legal treatment of patents on medical diagnostics (Prometheus v Mayo) as well as on through the doctrines of fair use and first sale.
FInally, Bobbi Kwall (DePaul) has posted a written version of her fantastic lunch talk, "Remember the Sabbath Day and Enhance Your Creativity":
Beginning in the twentieth century, researchers examining creativity theory have begun to focus on the relationship between a break period known as incubation and enhanced creativity. This relationship centers around the benefits of unconscious processing. Thus, science now seems to be documenting the benefits of the Jewish Sabbath, an institution dating back over three thousand years, during which time all work-day activities are suspended. This Article outlines the theological predicate of the Jewish Sabbath and surveys the history and development of the Sabbath laws. It then discusses the recent research in the social sciences and provides a theoretical bridge from this research to the significance of the Sabbath for enhancing human creativity.
There's more good stuff to come when the symposium issue appears.