Autonomy, social selves and intellectual property claims

Providing a full normative framework for evaluating intellectual property claims, let alone one that attempts to make sense of existing national and international laws, is a daunting task. No such general attempt at doing so will be made here, so my reflections in this chapter are provisional and piecemeal. But my intention is to trace out, in some detail, the meaning and implications of what I view as a powerful normative lens through which to view and evaluate intellectual property (IP) claims – that of individual autonomy. Clearly, until recently the dominant mode of analysis of IP has been the study of incentives, utilizing as a background framework either broadly utilitarian thinking or more specifically a wealth-maximization standard. However, other commentators have advanced considerations that deviate from these strict instrumentalist justifications, including Lockean (labour-based) arguments, claims based on personality theory and self-expression, connections to democracy and participation and consideration of broader social goals. One consideration that has received relatively less attention, but which criss-crosses a number of those just mentioned, is the evaluation of IP based on considerations of autonomy. Although hardly unexamined in this literature, attention to the value of autonomy, as I will unpack it here, may help tie together some of the core elements of various approaches and may well avoid some of their most glaring difficulties, though, as I will suggest, its power to justify strong IP protection in some areas may be limited.