Document Type
Article
Publication Date
2008
ISSN
1088-5625
Publisher
George Mason University School of Law
Language
en-US
Abstract
People commonly justify intellectual property protection with homage to utilitarianism (protecting the incentive to create, invent, or produce quality goods to maximize net social welfare) or natural rights (people should own the product of their creative, inventive, or commercial labor). Despite the ongoing dominance of these theories, a dissatisfying lack of a comprehensive explanation for the value of intellectual property protection remains. One reason for this failure is that economic analysis of intellectual property law tends to undervalue its humanistic element. Whereas utilitarianism and natural rights theories are familiar, at least one other basis for intellectual property protection exists. This Article explains how intellectual property protection is rooted in narrative theory. It contends that all of the United States copyright, patent, and trademark regimes are structured around and legitimated by central origin myths—stories that glorify and valorize enchanted moments of creation, discovery, or identity. As a cultural analysis of law, rather than the more familiar economic theory of law, this Article seeks to explain how these intellectual property regimes work the way they do. And as a narrative explanation for the structure of intellectual property protection, this Article enhances the more customary economic or philosophical accounts because narrative, especially one devoted to myth-making in our society, provides “models for human behavior and, by that very fact, gives meaning and value to life.”
Recommended Citation
Jessica Silbey,
The Mythical Beginnings of Intellectual Property
,
in
15
George Mason Law Review,
319
(2008).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/1058
