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Moral Bars to Intellectual Property: Theory & Apologetics

Abstract

Various intellectual creations are raising complex moral issues in intellectual property law.  Videos of mass shootings made by perpetrators, statues of the Confederacy displayed openly, torture techniques used on criminal detainees, and devices for consuming illegal drugs are only a few examples.  These expressive and inventive works pose the question of whether their apparent immoral nature should preclude intellectual property protection.  Although courts and scholars have long debated moral values in intellectual property doctrines, the literature is largely silent on the effect of intellectual property theory.  The question thus arises: Do the utilitarian, labor-desert, and autonomy theories of intellectual property imply that morality is relevant to whether a work should receive patent or copyright protection?  This is a critical question left unanswered by the scholarship and jurisprudence dealing with intellectual property and morality.  This Article considers the question.

This Article posits that each theory of intellectual property suggests that moral values should inform whether intellectual works receive protection.  The Article then contemplates likely objections, responding to arguments that academics have raised against the position that moral values should define intellectual property.  Specifically, it responds to the argument that denying protection in some instances may increase the output of an immoral work, that laws in areas other than intellectual property should address moral problems, and that the government should not interfere with the laissez-faire approach of letting the public decide the moral worth of an intellectual creation.  The Article concludes that, within constitutional limitations, certain moral values may serve as reasons to deny intellectual property protection.

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