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The Ends of Intellectual Property: Health as a Case Study

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Type: Journal Article
Author: Rai, Arti
Journal: Law and Contemporary Problems
Volume: 70
Date: 2007
URI: https://hdl.handle.net/10535/3542
Sector: New Commons
Information & Knowledge
Subject(s): intellectual property rights
health care
traditional knowledge
genetic resources
new commons
Abstract: From Introduction: "On the tenth anniversary of James Boyle's path breaking examination of intellectual property, it is appropriate to reflect upon 'big' questions in the field. Such reflection is particularly apposite in my case, as my decision to become an intellectual property scholar was greatly influenced by Boyle's book, Shamans, Software, and Spleens. Madhavi Sunder's essay identifies one of these big questions when she suggests that the book may place undue emphasis on wealth maximization as a normative criterion. Whether Sunder's critique is entirely fair is an open question. Indeed, in Boyle's carefully chosen examples of traditional knowledge, increasing overall wealth does not conflict with distributional considerations. If traditional resources held by poor people are taken from them without compensation, they will fail to invest in resource maintenance. In turn, the Western pharmaceutical firms that are dependent on these resources to secure large revenue streams will suffer. In Boyle's discussion of traditional knowledge, as in some real-life cases, equity and efficiency work in harmony. "Of course, equity can be in tension with efficiency. Some commentators have observed, for example, that national or tribal assertions of rights over genetic resources may create anti-commons effects for researchers who need access to materials that come from a variety of different geographical areas. In the domestic context, there is considerable concern that assertions of property rights by patients who are 'sources' of genetic material may impede medical research. More generally, Sunder's critique raises an important problem for intellectual property law and perhaps especially for patent law. In contrast with copyright scholarship, which is inflected with concerns about free speech and which therefore routinely takes account of issues other than wealth, patent law scholars have often accepted wealth maximization as the normative criterion by which they evaluate regulatory proposals in their field. Wealth maximization means Kaldor-Hicks efficiency: a proposal is superior to possible alternatives if the winners could in theory compensate the losers. As contrasted with Pareto-superiority, Kaldor-Hicks efficiency is not a normative criterion, at least if by normative one means moral. A regime that is Kaldor-Hicks efficient is merely potentially Pareto-superior. There is no need for the regime actually to be Pareto-superior. "As contrasted with Kaldor-Hicks efficiency or wealth maximization, increasing welfare is a morally compelling criterion. Even if one does not accept welfare as the determinative criterion, it is difficult to quarrel with the proposition that welfare matters. Moreover, a focus on welfare can incorporate the goal of giving greater weight to those with lower welfare levels. Attempts to evaluate intellectual property policy through the lens of welfare are associated, however, with two familiar problems: first, there is the difficulty of identifying tractable metrics for welfare. Although wealth can be measured quite readily, measuring welfare is much more difficult. The second difficulty is institutional: are welfare considerations that diverge from wealth maximization best addressed through regulatory regimes other than intellectual property? This brief commentary addresses these two questions."

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