December 2012, Volume 98, Issue 8|
Expressive Incentives in Intellectual Property
98 Va. L. Rev. 1745 (2012)
American copyright and patent laws are founded on utilitarian notions of providing limited incentives to create socially valuable works. This Article shows that incentives that express solicitude for and protect a creator’s strong personhood and labor interests can serve to support this underlying utilitarian purpose. In so doing, this Article shows that important incentives exist in addition to traditional pecuniary incentives. Through this lens, this Article demonstrates that what scholars typically see as a conflict between theories of utilitarianism and moral rights in intellectual property can in fact come together much of the time in a useful harmony to promote cultural, scientific, and technological progress. The Article then shows a number of promising areas for application in copyright and patent law of expressive incentives, such as attribution, the structure of duration, copyright’s originality requirement and its reversion right, and patent’s first-to-invent standard and written-description requirement. These areas are promising ones for investigation into the ideal mix of pecuniary and expressive incentives in intellectual property. Other areas, like integrity and robust restraints on alienability, are more troublesome because their societal costs might exceed their benefits.
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