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Hettinger v. Paine: Justifying Intellectual Property Rights

After Edwin C. Hettinger’s paper “Justifying Intellectual Property,” Philosophy & Public Affairs, Vol. 18, No. 1 (Winter, 1989), pp. 31–52, critical of IP, Lynn Sharp Paine responded in “Trade Secrets and the Justification of Intellectual Property: A Comment on Hettinger,” Philosophy & Public Affairs, Vol. 20, No. 3 (Summer, 1991), pp. 247–63 (text).

The debate is summarized in “Hettinger v. Paine: Justifying Intellectual Property Rights” by Professor Adam D. Moore.1 Moore’s overview of Hettinger’s critique of IP rights:

Hettinger criticizes a number of mainstream attempts to justify intellectual property and argues that the non-exclusive nature of intellectual works grounds a case against ownership. “Why should one person have the exclusive right to use and possess something which all people could possess and use concurrently?” The well-known Lockean labor and desert arguments, as well as arguments based on privacy and sovereignty, are found to be problematic and are ultimately rejected as justifications of intellectual property. Hettinger also examines the utilitarian argument based on providing incentives which he considers to be only partially successful. He concludes with the claim that justifying intellectual property is a daunting task and we should think more imaginatively about alternative methods of stimulating intellectual labor short of granting full blown property rights.

And Moore’s overview of Paine’s critique of Hettinger:

Paine develops a defense of intellectual property, and in particular trade secrets, that focuses on the privacy and sovereignty of individuals. She argues that in general individuals have initial disclosure rights with respect to the ideas, opinions, plans, and knowledge found within their own minds. These rights are grounded in respect for individual privacy and autonomy. While Paine acknowledges that this kind of justification has limits and may not work at all beyond trade secrets, she argues that some kinds of intellectual property may be justified along these lines.

  1. Moore is author of Intellectual Property and Information Control: Philosophic Foundations and Contemporary Issues (Routledge, 2001; pdf), Intellectual Property: Moral, Legal, and International Dilemmas, ed. (Lanham, Md.: Rowman & Littlefield, 1997; pdf; Introduction), and the forthcoming Intellectual Property: Moral and Legal Foundations. []
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