The Spider’s Thread: Considering “Justifying Intellectual Property” Based on the Standpoint of “A Philosophy of Intellectual Property” and “A Theory of Intellectual Property”

The objective of this paper is to critically examine “Justifying Intellectual Property” by Robert P. Merges (Justifying intellectual property. Harvard University Press, Cambridge, MA, 2011), which attempts to justify intellectual property rights based on moral deontology and/or rights theory. The book has already generated a lot of controversy. Some argue that the propriety of intellectual property rights should be demonstrated based on empirical research from the standpoint of utilitarianism. Others argue that disputes can only be resolved through appropriate mechanisms of social choice, such as democracy. This paper argues that the ultimate basis for intellectual property rights must depend on political legitimacy, i.e. democratic decision-making, and it is precisely for that reason that biases in the policy-making need to be addressed. Finally, the paper advocates that in order to mitigate this inherent problem of intellectual property rights, it is necessary to address the question of what intellectual “property” really is.