The Relationship between Foundations and Principles in IP Law

Author(s): Robert P. Merges
Year: 2013

Abstract: In my book, Justifying Intellectual Property ("JIP") (Harvard U Press, 2011), I describe three levels of analysis in intellectual property (IP) Law: (1) specific doctrines and practices; (2) midlevel policy principles, which derive from and tie together various doctrines and practices; and (3) foundational commitments, or basic normative rationales for the existence of IP. This article answers some questions that have been raised about the relationship between these levels, particularly the midlevel principles and foundational commitments. Foundations, for me, answer the "whether" question: whether IP rights ought to exist at all. Once this question is answered in the affirmative, and detailed rules begin to arise to resolve controversies and allocate rights, high-level organizing themes will be seen to emerge that tie together disparate and distinct rules. These are the midlevel principles. One particular goal of this article is to revisit the difference between utilitarianism as a foundational principle and efficiency as a midlevel principle. In JIP I reject utilitarian foundations, yet embrace efficiency as one of four midlevel principles. This article explains why.