The instrumentalist emphasis of the current biotechnology intellectual property rights (IPR) debate is not surprising. In the American tradition, intellectual property law has long been justified primarily by instrumentalist concerns. Thomas Jefferson famously acceded to the “embarrassment of patent and copyright monopolies because he believed a limited monopoly would encourage the production of new scholarship and inventions. The framers' willingness to allow this embarrassment for the greater good is enshrined in the Intellectual Property Clause of the U.S. Constitution. Countless judicial opinions refer to intellectual property law as a tool that provides necessary incentives to creators and innovators. Intellectual property policy directed at biomedical research is expressly instrumentalist. For example, the Bayh-Dole Act, which permitted the patenting of inventions developed through government-funded research, was “designed to . . . encourage private industry to utilize Government financed inventions through the commitment of the risk capital necessary to develop such inventions to the point of commercial application. The American instrumentalist approach to intellectual property in part reflects John Locke's influence on the American founders. A substantial body of recent scholarship has explored the Lockean justification for intellectual property. A second strand of Lockean labor theory is the proposition that when labor is applied to nature, the value added by the laborer merits a reward. Although the value-added theory is a normative proposition, it is understood in an instrumentalist or consequentialist sense to mean that laborers will only add value to nature if they expect to receive equal value in return from society. The instrumentalist approach to intellectual property has nearly fully occupied the international sphere. The Trade Related Aspects of Intellectual Property agreement (TRIPS), in particular, reflects the view that the “social purpose of intellectual property “is to provide protection for the results of investment in the development of new technology, thus giving the incentive and means to finance research and development activities. Much of the legal and economic scholarship relating to IPR policy and the biotechnology commons explores this instrumentalist approach. Michael Heller and Rebecca Eisenberg's enormously influential article concerning the biomedical research anticommons was framed in terms of deterrence and incentives to innovation. The debate over the biotechnology anticommons has been framed in terms of whether “exclusive rights in new knowledge will promote scientific progress, or whether “science advances most rapidly when the community enjoys free access to new discoveries. The U.S. Constitution, Rebecca Eisenberg notes in one of her germinal articles on how patents affect scientific progress, “posits an instrumental justification for patents, allowing Congress to enact patent legislation for the specific purpose of promoting scientific progress. Similarly, scholars such as Mark Lemley and Dan Burk have explored whether tweaking the patent system in various ways would increase incentives to innovate and to develop commercial products in fields such as biotechnology and traditional pharmaceuticals. In contrast to these instrumentalist approaches, other theorists have developed the Hegelian theme that property “provides a unique or especially suitable mechanism for self-actualization, for personal expression, and for dignity and recognition as an individual person. In this view, private property is necessary because “to achieve proper self-development-to be a person-an individual needs some control over resources in the external environment. As applied to intellectual property, this notion can take on particular force, because creative expression is an element of one's self. Thus, although an author may alienate copies of her work, she “keeps the universal aspect of expression as her own. Alienation of the personal aspect of expression would be tantamount to slavery. Still others have mounted a postmodern critique of the notion of “authorship that underlies copyrights and patents. These critics argue that intellectual property rules are based on the fiction that an identifiable “author or “inventor is responsible for a given creative work or invention and the related fiction that such “authors or “inventors can “own information. “Authorship or “inventorship, in this reading, is properly considered a communal practice, rather than an individual achievement. It is improper, then, to grant any individual monopoly control over what should remain accessible to the entire community. Each of these approaches has merit. The instrumentalist justification has facilitated the rise of technology-rich industries, such as pharmaceuticals and biotechnology, and the postmodern critique appropriately focuses attention on the communal nature of creative and inventive work. But none of them seems complete in itself, and it can be difficult to draw connections between them. Moreover, none of these approaches situates intellectual property into a coherent broader context of human development and flourishing. As a result, the academic debate over intellectual property remains at a stalemate, while in the political arena the utilitarian view prevails because wealthy and powerful corporate interests support it. We should be able to move past this stalemate. Indeed, there is an ancient understanding of ethics that could integrate the useful themes inherent in existing theories and provide a more robust and humane treatment of intellectual property in society: that of virtue ethics. Legal scholars have just begun to explore the implications of virtue ethics for law and policy and to develop a system of “virtue jurisprudence."
David W. Opderbeck,
A Virtue-Centered Approach to the Biotechnology Commons (Or, The Virtuous Penguin),
Me. L. Rev.
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol59/iss2/5