Ontology and the Regulation of Intellectual Property

The Monist 93 (3):450-463 (2010)
Abstract
Philosophical reflection on intellectual property (IP) is still very young. Whilst much has been written by lawyers on intellectual property, the vast majority of this writing is philosophically unsophisticated. This paper aims to at least partially remedy this philosophical deficit by examining what reflection on the ontology of intellectual property can add to our understanding of how to regulate IP. I argue that ontological reflection should bring us to an important basic fact, namely that ownership of intellectual property involves the ownership of types rather than tokens. This difference in the ontological status of the objects owned makes a normative difference to how we should regulate ownership of intellectual property as compared to tangible property. The argument falls into three main parts. I begin by arguing that the type-token distinction is the best way to account for the ontology of intellectual property. I next argue that the realisation that we are dealing with ownership of types rather than tokens has important normative implications. In particular some of the standard arguments in favour of private ownership of physical property simply do not apply in the case of ownership of types, whilst some other arguments apply only in an attenuated way. The next section examines the limitations of ontology as a guide to the regulation of IP. I argue that whilst thinking through the normative implications of the type-token distinction is a necessary 1 condition for a sound regulatory approach to IP, it is certainly not sufficient. This is because many of the specific questions about the regulation of intellectual property that matter most in practice—such as how long the patent term should be, or how much someone should be able to quote from a book and it count as fair use—are not answerable by ontological reflection. Such questions concern the fair distribution of the burdens and benefits involved in the construction of public goods, rather than questions of ontology..
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