Explain the main principle of the Utilitarian Theory of Intellectual Property and what danger does this theory highlights regarding creator's ability to recoup their costs of expression.

CS Professional · Intellectual Property Rights - Law and Practice · PYQS · December 2025
Explain the main principle of the Utilitarian Theory of Intellectual Property and what danger does this theory highlights regarding creator's ability to recoup their costs of expression.

Answer & Explanation:

Utilitarian Theory has been advocated by economists such as Bentham and Mill and its primary focus is upon the attainment of the greatest good for the greatest number. The main principle of this theory is that any policy made and implemented by any authority should have the power to ensure the greatest good for the greatest number. Greatest good here refers to the utmost welfare and greatest number refers to the masses. Lawmakers' beacon when shaping property rights should be the "maximization of net social welfare". This is essentially the utilitarian thought. In respect of the subject of intellectual property, the school of thought requires that the lawmakers must strike an optimal balance between the power of exclusive rights to stimulate the creation of inventions and works of art on the one hand, and, the partially offsetting tendency of such rights to curtail widespread public enjoyment of those creations, on the other. The danger expressed in respect of this theory is that the creators of such products will be unable to recoup their "costs of expression" i.e. the time and effort devoted by them to writing or composing and the costs of negotiating with publishers or record companies, since copyists are likely to undercut them and persons bear a very low cost of production and thus they can offer identical products to the consumers at a very low price resulting in a loss to the creators of the products. If this happens, it will disincentivise the creators from making any socially valuable intellectual product. This can, however be avoided by allocating to the creators (for limited times) the exclusive right to make copies of their creations. The creators of works that are valuable to consumers will be empowered to charge prices (for allowing anyone to access their works), which shall be substantially greater than they could in a competitive market. This rationale, put forward by the utilitarian thinkers, has been used to shape specific doctrines within the field.

Topics: Intellectual Property Rights

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