Chatterjee on IP, Independent Creation, and the Lockean Commons @nirrvala

Mala Chatterjee, NYU School of Law; Stanford University; NYU Department of Philosophy, has published Intellectual Property, Independent Creation, and the Lockean Commons. Here is the abstract.

Copyright and patent law – which grant exclusive rights in two very different kinds of subject matter, but are nonetheless lumped together as “intellectual property” – are predominantly regarded by U.S. scholars as having the same theoretical underpinnings. This manifests in doctrine, as courts have ruled in a number of ways aiming to unify the two areas of law. One example of this tendency to theoretically unify copyright and patent law is Seana Shiffrin’s paper “Lockean Arguments for Private Intellectual Property”, which argues against Lockean understandings of intellectual property. This paper argues that Shiffrin’s challenge is successful in the context of patent law, but not in the context of copyright, due to significant doctrinal differences between the two. The paper then outlines normative questions raised by these differences, as well as potential doctrinal implications that would result if copyright and patent law are shown to have distinct normative foundations.

Download the article from SSRN at the link.