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Happy IP: replacing the law and economics justification for intellectual property rights with a well-being approach

Derclaye, Estelle; Taylor, Tim

Authors

ESTELLE DERCLAYE estelle.derclaye@nottingham.ac.uk
Professor of Intellectual Property Law

Tim Taylor



Abstract

E.I.P.R. 197 The dominant justification for intellectual property rights at least in the West and international treaties is utilitarian, and more precisely based on the Chicago School of Law and Economics (first section). However, this school of thought is both flawed and ideological (second section). Basing protection solely on the economic aspect of utility (i.e. income) has been increasingly challenged in recent years. We thus propose that intellectual property rights should be justified using a notion of utility based directly upon well-being, rather than using income as a proxy. We outline a theory-neutral approach to well-being that could be employed for this purpose (third section). Our proposal, like any and every other legal programme, cannot avoid being ideological (fourth section) but it avoids the flaws of the Law and Economics approach. It is also not paternalistic (fifth section).

Journal Article Type Article
Publication Date Jun 1, 2015
Journal European Intellectual Property Review
Print ISSN 0142-0461
Electronic ISSN 0142-0461
Publisher Sweet and Maxwell
Peer Reviewed Peer Reviewed
Volume 37
Issue 4
APA6 Citation Derclaye, E., & Taylor, T. (2015). Happy IP: replacing the law and economics justification for intellectual property rights with a well-being approach. European Intellectual Property Review, 37(4),
Publisher URL http://www.sweetandmaxwell.co.uk/catalogue/productdetails.aspx?productid=7061&recordid=460
Copyright Statement Copyright information regarding this work can be found at the following address: http://eprints.nottingh.../end_user_agreement.pdf

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ED and TT EIPR 2015 as published.pdf (529 Kb)
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Copyright Statement
Copyright information regarding this work can be found at the following address: http://eprints.nottingham.ac.uk/end_user_agreement.pdf





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