Intellectual property and social justice: Robert Nozick versus John Rawls

This essay presents the overview and analysis of the discussion between Robert Nozick and John Rawls that is stated in the article "Is Nozick Kicking Rawls's Ass? Intellectual Property and Social Justice" written by Anupan Chander and Madhavi Sunder, American intellectual property law scholars. The translation of these articles is published in the present number. Is the libertarian vision of Nozick in ascendance in intellectual property, overshadowing Rawls's egalitarianism? Yes, and rightly so, some intellectual property scholars suggest. They argue that intellectual property law seeks to solve a fundamental problem of information economics: without intellectual property protections, the ready duplicability of information undermines incentives to create information. Armed with this economic insight and fortified a neo-liberal faith that markets with well-defined property rights in information will best promote liberty, these scholars would keep intellectual property's focus single-minded: to incentivize the production of information. The authors argue that this view is too narrow. A variety of societal goals must inform intellectual property law because (1) understanding intellectual property's impact on a variety of social values helps us restrain maximalist intellectual property demands; (2) relying on the tax and welfare systems to remedy any resulting distributional deficiencies is unrealistic; (3) the reason for existence of Western intellectual property laws is not necessarily globally scalable because of varying capacities to innovate; (4) we must attend to the kind of innovation that law spurs (for example, does the existing regime adequately incentivize the discovery of treatments for poor people's diseases?); and (5) we can best understand fair use doctrine not just as market failure but as an important component of free speech.

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