Capabilities, Spillovers, and Intellectual Progress: Toward a Human Flourishing Theory for Intellectual Property

This essay takes a few steps toward a human flourishing theory of intellectual property. It begins with a brief explanation of the utilitarian economic theory of IP and my prior work on spillovers as an internal critique. Next, it discusses Amartya Sen’s development of the capabilities approach as an alternative to utilitarian economics (as well as rights based theoretical approaches). It provides the foundation for an external critique. It then highlights limitations in both the spillovers critique and the capabilities approach as an external critique, and suggests that some of the gaps left bare by the spillover critique may be filled by in the CA and vice versa. The essay also explains three ways in which law operates as a means for society to invest in capabilities: moral floors, social obligations, and leveraged resource allocation. Most of the CA literature that considers the role of law as means focuses on moral floors, such as minimum capability-based standards for nation-states rooted in human rights or manifest in Constitutions. The social obligations theory developed by Greg Alexander incorporates the normative values of the CA into property law and provides an excellent bridge to theory developed in this paper. Leveraged resource allocation, to my knowledge, has not received much, if any, attention elsewhere.Recognizing the intellectual property laws govern nonrival resources requires careful consideration of how society may use the law to leverage nonrivalry as a means for achieving various social objectives, including supporting various capabilities. The moral floors and social obligations theories help frame the conversation about which capabilities matter. But the ends (capabilities) best served (supported) by intellectual property laws are to a large extent limited by or dependent on the interdependent relationships between people, resources and actions within complex nested (economic, cultural, political, and social) systems. The social opportunities to leverage nonrivalry through law and other social institutions are constrained by these relationships, and we need to understand them better as we evaluate and possibly reform intellectual property laws. Integrating the spillovers and capabilities approaches reveals an incredibly useful mechanism by which society invests in public capabilities. The commons components of intellectual property leverage nonrivalry to sustain critically important public capabilities associated with intellectual, cultural, economic, political, and social development; legally-facilitated spillovers function as social investments in the capabilities of others.This essay does not resolve the underlying normative deficit problem in intellectual property. Many commentators, courts and casebooks will continue to assume (mistakenly) that intellectual property is fundamentally and unalterably utilitarian. As I have explained elsewhere, it is not. But even if we adopt human flourishing as our end and assume that developing capabilities within society is our normative objective, we still need to consider which capabilities to support and what mechanism to use for prioritizing or weighting different capabilities.Capabilities are tricky because maximization or optimization only make sense if you specify and prioritize or weight the various capabilities. In this essay, I do not engage that normative question and leave it open to political or other processes for making the normative commitments (and for further exploration in future scholarship). I may have my list and set of priorities, and you may have yours, but we might see areas of agreement emerge when we move off the moral floor debate and engage with the functional resource allocation concerns explored in this essay. Even if we do not find areas of agreement, we still might be able to leverage nonrivalry through the law in ways that leave it open for individuals or groups to decide for themselves what capabilities matter and when and how to exercise them.