More on the Purported Moral Right to own IP

The most important defense of the idea that IP protections respect pre-existing moral rights is Robert Merges’ 2011 book Justifying Intellectual Property. Merges doesn’t argue that moral rights are foundational to IP law, but he does argue that what he calls the “dignity principle” is one part of the foundation of IP law. Here’s how he describes it:

[the dignity principle] says the creator of a work should be respected and recognized in ways that extend beyond the traditional package of rights associated with property: the right to exclude, to alienate (sell or license), to use as one wishes, and so forth. (p. 156)

The dignity principle is a generalization of what are called the “moral rights of authors” especially in European IP law. The commonly recognized “moral rights of authors” include a right to attribution for the work, a right to integrity in the work, the right to disclosure (i.e. when the work will be made public), and a right of withdrawal (i.e. repossess the work with compensation for the owner). The idea with the dignity principle is that respecting the creator as a creative individual requires recognizing control rights over her creative works.

One problem with the dignity principle and the argument that property rights in IP confers respect for creators is that what it means to “respect” a creator is ambiguous. This ambiguity was pointed out in a classic 1977 article by Steve Darwall, “Two Kinds of Respect.” Darwall distinguishes what he calls “recognition respect” and “appraisal respect.” Recognition respect involves, roughly, giving someone’s interests/claims/requests appropriate weight in your deliberation. When you step on someone’s toe, recognition respect for them involves reacting to their “Ow!” not as a cost to be avoided but as a genuine reason for you to apologize. Appraisal respect, by contrast, is the kind of respect that mountaineers mean when they say something like, “you have to respect the mountain in order to climb it.” Appraisal respect is a kind of esteem reflecting an apt judgment of someone or something’s abilities/capacities/qualities.

If the dignity principle in IP requires respect for creators in the sense of “appraisal respect,” there is a puzzle because appraisal respect is directly connected to judgments around merit and quality. By contrast, IP doesn’t protect only creative works that we think are bad as well as good. Maybe we are appraising someone’s creative capacity rather than particular episodic cases of creation. Still, I find it mysterious how we could esteem someone’s creative capacity apart from a judgment that, on the whole, it will lead to good work. Maybe we think that the side-effects of creative activity are valuable rather than the direct consequences? This seems to get the point of creative work wrong though. More fundamentally, the importance of appraisal respect for artists and creators points to something like the value of a culture that encourages creative excellence and confers high social status on creators. IP law has a possible connection to this kind of culture, but not a necessary one.

If the dignity principle in IP requires respect in the sense of “recognition respect,” this sense also seems inappropriate for IP because it is too general. I can understand how copying someone’s creative work without attribution as if it were simply grist for one’s own mill rather than someone’s intentional creation involves a kind of misrecognition of the person. What seems important, however, is recognition of a person as an agent with “projects” in her life. This is a general notion, however, and too thin to support something specific like IP rights. After all, it would seem to have ramifications throughout all of property law. Is it plausible that there are “moral rights” for entrepreneurs analogous to those of creators?

Political theory PhD. I write about politics and (social) science.