Mr. Mohit Kar
Jeremy Bentham is known as the founder of modern utilitarianism. He believed in production of the greatest possible quantity of happiness, on the part of those whose interest is in view. With regards to intellectual property, he had opined that inventors and authors should be given absolute privilege over their work, which would ensure they get remunerated duly for their work, thus leading to further creative actions being taken by them. In this article, the author will make an analysis of the utilitarian theory as proposed by Jeremy Bentham and its interplay with Intellectual Property.
According to utilitarians, the main purpose of property rights is the maximization of common well-being.[i] According to Jeremy Bentham, the common well-being here mentioned is the good for the greatest number of people in a population. He defined the principle of utility as carrying an object of production of maximum happiness in a given time in a particular society.[ii]
The wealth of a society consists of the cumulative wealth of each of its individual members. The most effective way to increase individual wealth is to leave the management of wealth to the individual himself, since – between the individual and the government – it is the individual who can best manage his own wealth. The society gains benefits because the increase in individual wealth is also the increase of collective wealth. Sharing this wealth is managed by the government, through taxes. Bentham argued that the value of outcome of a society is positive if the total quantity of pleasure gained by each individual under its influence is greater than the total quantity of pain.[iii] Thus, Bentham put stress on the happiness and wealth of individuals in a society.
Jeremy Bentham’s utilitarianism advocates the maximization of common well-being and the proper use of resources available. To show us a practical point of view, he criticized the kind of trade strategies where a country prevents the purchase of cheaper products from another country only to protect its market. In his opinion, to pay more for a product that can be manufactured elsewhere with the same quality standards only to favor the national industry is a waste of resources.[iv] Bentham believed that trade barriers to foreign imports cannot increase trade and commerce in a particular country.[v] He termed it as a necessary evil which would give rise to monopolies and lower the quality of production.[vi]
Transposing this theory to intellectual property rights, for the maximization of common welfare to be made, the legislators should strike a balance between, the monopoly of rights to stimulate creation and giving access to the population to inventions. Bentham defended the idea of a limited period of protection for patents and he believed in the absolute privilege of the inventor, so that the latter can recover the amounts invested during the inventive process, while being paid for his creative activity.[vii] The right must also help the inventor since without any laws to protect him; any third party could copy his invention and thus enjoy his work without any compensation being granted. The logic to defend the monopoly stems from the fact that, without the latter, the inventor would not be encouraged to put his product or invention on the market. In this case, it would be the society that would have lost wealth which could have been added to the common well-being. In the name of enriching common well-being, Bentham stresses the importance of patents in a society and even argues that their concession should be a free service offered to inventors.[viii]
The contemporary version of this theory has been presented to us by William Landes and Richard Posner in two separate works, one on copyright and the other on trademark law.[ix] Economic analysis of intellectual property rights presented by these two authors demonstrates that the protection of intellectual property may be too expensive for society and it limits the use of products. If we extrapolate a little, this contemporary utilitarian vision can assert that the products by intellectuals should be easily copied since the copies of a product do not prevent the use of the same product by several people.
William Landes and Richard Posner consider the creative process as divided into two parts.[x] If we use a book as an example, its production is split between the part comprising author’s time and effort plus publishing costs, and the second part includes publication and distribution costs of the book. Generally, it is the first of these two elements that demands the most investment. The second will be more or less expensive, depending on the quantity of copies that will be produced. When the work is complete, its reproduction does not require any investment at the creative level. Hence, they stated that striking a correct balance between access and incentives is one of the central problems of copyright law.[xi]
In this way, as already mentioned, the lack of remuneration of creators for the exploitation of their works may have as a consequence the diminution of the cultural wealth of a society, given that the creators will not have the desire to continue to create unless paid.
It is important to note that the lack of protection conferred by copyright would not change this problem. In a society where copyright protection does not exist, a book could be easily copied without the act of copying being considered an offense.
When the contemporary utilitarian vision is applied, it indicates that the benefits that they bring to a society are:
- It makes it easier for consumers to choose the product which has the qualities corresponding most to its needs. Since consumers already know the brand, they should not search among a whole range of products available on the market;
- It encourages producers to maintain good quality of their products, because consumers associate the product quality with the brand attached to it;
- It improves the language. Landes and Posner believe that the brands create new words that end up being incorporated in the lexicon of the language.[xii]
Suppose the utilitarian theory – that of Bentham, or Posner’ and Landes’ – would be applied to intellectual property as it stands today: the benefits that would be brought to society by this analysis would be the incentive for creativity, the optimization of production and the disappearance or diminution of similar inventions made by different individuals.
Among these three advantages, we can consider the incentive to creation as the most important. In this case, the monopoly guaranteed by intellectual property stimulates creation in a society and, especially with regard to patents; inventions will bring more happiness and pleasure to society in general. This justifying argument is in harmony with Bentham’s utilitarianism. The problem here is that no one really knows what kind of invention would bring more or less happiness or pleasure to the society. Moreover, the term “monopoly concession” for patents, trademarks and copyright is not based on any empirical or objective study and is rather random.
Optimization of production sees ownership monopolies intellectual property as a “service” to society since data from sale indicates the products for which the company has the most need. This approach could even justify increasing the period of protection of intellectual property products. The logic here is that the decrease in the protection period or even the removal of the protection would deprive the producers of information that enables them to optimize their production. Thereby, the withdrawal or diminution of protection could even be considered harmful to society. However, if we do not impose limitations to this theory, the result could be a disparity of investments in intellectual property over investments in other areas, such as education and health, as well as in general research activities.
Utilitarianism, as it stands today, is intimately linked to the information obtained from the use of intellectual property monopolies. The goal is to avoid duplication of production. The problem in this case is that in a society which values and encourages the production of new patents and new technologies, the plethora of patents complicates the process. This finding is based on the fact that new inventions normally rely on existing patents and the production of a new patented product will require a large number of licenses before it can begin. As Richard Posner said in his blog: ‘Patents are a source of great social costs, and only occasionally of commensurate benefits. Most firms do not actually want patents; for those firms, the costs involved in obtaining licenses from patentees are not offset by the prospect of obtaining license fees on their own patents.’
Mr. Mohit Kar is a 3rd Year, B.A., LL.B (Hons.) student at Maharashtra National Law University, Aurangabad.
[i] Munzer, S. (2007), New Essays in the Legal and Political Theory of Property, Cambridge, UK: Cambridge University Press.
[ii] Bentham, J. and Bowring, J. (1843), The Works of Jeremy Bentham, Vol. 3, p. 33
[iii] Keeton, G. and Schwarzenberger, G. (1948), Jeremy Bentham and the Law, Westport: Greenwood Press Publishers, p.249.
[iv] Supra, n. 2, p. 64
[vii] Ibid, p. 71.
[ix] Landes, W. and Posner, R. (1989), An Economic Analysis of Copyright Law, Journal of Legal Studies, 18.
[xii] Landes, W. and Posner, R. (1987). Trademark Law: An Economic Perspective. University of Chicago Press.