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Patrick R. Goold & David A. Simon, Lucky IP, 42 Oxford J. Legal Stud. 843 (2022).

Abstract: A person naturally owns the fruits of their intellectual labour; so goes the labour argument for intellectual property (IP). But what should happen when a creator gets ‘lucky’—such as the photographer who is in the right place at the right time or the scientist who accidentally discovers a new drug? IP law frequently awards ownership in such cases (what we call ‘Lucky IP’). Some argue, however, that the creators in such cases do not labour sufficiently to deserve ownership, and that Lucky IP merely demonstrates that IP law is not truly concerned about labour at all. Drawing on the philosophical literature of moral luck, we argue that this analysis is misguided. Nearly all intellectual creations involve some measure of luck and, in most cases, the creators still labour sufficiently to become the natural owners of their creations. Lucky IP does not, therefore, undermine the labour theory of IP law.