Saturday, January 20, 2018

Crowdsourced Bibliography on IP and Distributive Justice

Professor Estelle Derclaye recently sparked a terrific email thread among IP professors about articles tackling IP from a distributive justice perspective. Here is a lightly edited list of the suggested works, roughly in chronological order, with links (open access, where possible) and, for somewhat arbitrarily selected works, short quotations or descriptions. If you have additions or corrections, feel free to email me or add them to the comments.

William W. Fisher III, Reconstructing the Fair Use Doctrine, 101 Harv. L. Rev. 1659, 1756–60 (1988) ("[O]nly two of those theories [for distributing shares of the social pie] are defensible: a variant of the 'difference principle' popularized by John Rawls; and the proposition that unequal effort warrants unequal reward.").

Molly Shaffer Van Houweling, Distributive Values in Copyright, 83 Tex. L. Rev. 1535 (2004) (arguing that copyright traditionally "subsidized creative opportunities for people who could not otherwise afford to create" but that as "technological changes are distorting copyright's distributive impact, standard copyright analysis has become increasingly blind to distributive concerns).

Anupam Chander & Madhavi Sunder, The Romance of the Public Domain, 92 Calif. L. Rev. 1331 (2004) (arguing that the definition of the public domain has significant consequences for distributive justice).

Amy Kapczynski, Samantha Chaifetz, Zachary Katz, & Yochai Benkler, Addressing Global Health Inequities: An Open Licensing Approach for University Innovations, 20 Berkeley Tech. L.J. 1031 (2005). This was one of the first law review articles I ever read, and it sparked ideas for my early publications as a law student.

Margaret Chon, Intellectual Property and the Development Divide, 27 Cardozo L. Rev. 2821 (2006) ("Recent insights from the field of development economics suggest strongly that intellectual property should include a substantive equality principle, measuring its welfare-generating outcomes not only by economic growth but also by distributional effects.").

Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom ch. 9 (2006) ("[T]he emergence of the networked information economy can provide significant benefits to human development …").

2007 U.C. Davis L. Rev. symposium: Intellectual Property and Social Justice. Many great papers on the symposium website:
  • Anupam Chander & Madhavi Sunder, Foreword: Is Nozick Kicking Rawls's Ass?
  • William W. Fisher & Talha Syed, Global Justice in Health Care: Developing Drugs for the Developing World
  • James Love, Measures to Enhance Access to Medical Technologies, and New Methods of Stimulating Medical R & D
  • Keith Aoki, Distributive and Syncretic Motives in Intellectual Property Law (with Special Reference to Coercion, Agency, and Development)
  • Margaret Chon, Intellectual Property "from Below": Copyright and Capability for Education
  • Shubha Ghosh, The Fable of the Commons: Exclusivity and the Construction of Intellectual Property Markets
  • Rosemary J. Coombe, Steven Schnoor & Mohsen Ahmed, Bearing Cultural Distinction: Informational Capitalism and New Expectations for Intellectual Property
  • Ann Bartow, Trademarks of Privilege: Naming Rights and the Physical Public Domain
  • Laurence R. Helfer, Toward a Human Rights Framework for Intellectual Property
  • Kal Raustiala, Density and Conflict in International Intellectual Property Law
  • Peter K. Yu, Reconceptualizing Intellectual Property Interests in a Human Rights Framework
  • Julie E. Cohen, Creativity and Culture in Copyright Theory
  • Siva Vaidhyanathan, The Googlization of Everything and the Future of Copyright
  • Leslie A. Kurtz, Copyright and the Human Condition
  • Molly Shaffer Van Houweling, Bumping Around in Culture: Creativity, Spontaneity, and Physicality in Copyright Policy
  • Robert P. Merges, Locke Remixed ; - )

Thomas W. Pogge, World Poverty and Human Rights: Cosmopolitan Responsibilities and Reforms (2d ed. 2008) (see chapter 9: "Pharmaceutical Innovation: Must We Exclude the Poor?").

Intellectual Property and Theories of Justice (Axel Gosseries, Alain Marciano & Alain Strowel eds., 2008).

Sean Flynn, Aidan Hollis & Mike Palmedo, An Economic Justification for Open Access to Essential Medicine Patents in Developing Countries, 37 J.L. Med. & Ethics 184 (2009) (arguing that "markets for essential medicines under patent in developing countries with high income inequality" are "systematically ill-suited to exclusive marketing rights, a problem which can be corrected through compulsory licensing").

Ana Ramalho, Intellectual Property and Social Justice, in Handbook of Social Justice (F. Columbus ed. 2009).

Intellectual Property Law: Economic and Social Justice Perspectives (Anne Flanagan & Maria Lillà Montagnani eds., 2010).

2010 Wis. L. Rev. symposium: Intergenerational Equity and Intellectual Property. Abstracts here.

Robert P. Merges, Justifying Intellectual Property (2011) (see chapter 4: "Distributive Justice and IP Rights") (see PrawfsBlawg symposium).

Amy Kapczynski, The Cost of Price: Why and How to Get Beyond Intellectual Property Internalism, 59 UCLA L. Rev. 970 (2012) (Written Description post here).

Madhavi Sunder, From Goods to a Good Life (2012) (see Concurring Opinions blog symposium).

Oren Bracha & Talha Syed, Beyond Efficiency: Consequence-Sensitive Theories of Copyright, 29 Berkeley Tech. L.J. 229 (2014) (noting that "democratic and distributive theories—surprisingly, given their invocation of different values—seem at first blush to align closely with economic analysis and its familiar incentive-access tradeoff" but arguing that they do "make a concrete difference in the context of particular policy questions").

Peter S. Menell, Property, Intellectual Property, and Social Justice: Mapping the Next Frontier, 5 Prop. Rts. Conf. J. 147 (2016) (Written Description post here).

Peter Drahos, A Philosophy of Intellectual Property (2016).

Hannah Brennan, Amy Kapczynski, Christine H. Monahan & Zain Rizvi, A Prescription for Excessive Drug Pricing: Leveraging Government Patent Use for Health, 18 Yale J.L. & Tech. 275 (2016) (Written Description post here).


Ezieddin Elmahjub & Nicolas P. Suzor, Fair Use and Fairness in Copyright: A Distributive Justice Perspective on Users' Rights, 43 Monash U. L. Rev. 274 (2017).

Peter Lee, Toward a Distributive Agenda for U.S. Patent Law, 55 Hous. L. Rev. 321 (2017) (arguing that the U.S. patent system in fact has "numerous 'distributive' mechanisms," that distribution "is consonant with the ideological foundations of U.S. patent law," and that different actors could do more to set a distributive agenda).

Justin Hughes & Robert P. Merges, Copyright and Distributive Justice, 92 Notre Dame L. Rev. 513 (2017) (arguing that "contributes vitally to the incomes of average-earning creative professionals" and "has been central to whatever limited 'equality of opportunity' African-Americans have enjoyed in the United States).

Brett M. Frischmann, Capabilities, Spillovers, and Intellectual Progress: Toward a Human Flourishing Theory for Intellectual Property, 14 Rev. Econ. Research on Copyright Issues 1 (2017).

Amy Kapczynski, Order Without Intellectual Property Law: Open Science in Influenza, 102 Cornell L. Rev. 1539 (2017).

Finally, this year's NYU innovation policy colloquium is focused on IP and inequality. Drafts will be posted here.

Update with more works added after the initial post:

David Blankfein-Tabachnick, Intellectual Property Doctrine and Midlevel Principles, 101 Calif. L. Rev. 1315 (2013).

Robert P. Merges, Foundations and Principles Redux: A Reply to Professor Blankfein-Tabachnick, 101 Calif. L. Rev. 1361 (2013).

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