Delimiting Intellectual Property : Distinct Approaches to Spillovers

This short essay assesses distinct approaches to delimiting intellectual property. Specifically, it addresses claims to control spillovers without which culture cannot move forward, notably spillovers of texts, images, techniques, information, ideas, etc. It contrasts methodologies: on the one hand, economic analysis, following Adam Smith, seeks incentives for optimizing objective welfare; on the other, critical analysis, following Kant, aims at rules to assure subjective autonomy. Economic analysis encounters difficulties in the field of intellectual property to the extent that it focuses on some putative marketplace for cultural goods, blindsiding us with regard to cultural dynamics. For example, such analysis premises only profit-based incentives for creativity, and it cannot alone draw boundaries around cultural goods, especially to minimize the transaction costs of bargaining over spillovers. This essay then turns to critical analysis which, considering legal rules as they bear on the autonomy of creators, opens up converging lines of inquiry into intellectual property. In general, such analysis has to structure rules for governing relations among claimants and users to allow spillovers of cultural goods within ever-growing networks. In particular, it has to delineate aspects of creations, notably generative ideas, to be left free to spill over from prior into further cultural goods