Intellectual property theories: are they fairly justified?

Intellectual property theories: are they fairly justified?

The fact that the exclusive right permits the creator to forbid the others from using his work is the main source of conflict. This part will question whether this restriction is fairly justified.

SECTION I: THE NATURAL RIGHTS THEORY

In order to justify intellectual property, the natural rights theory considers that everyone has a natural property right on his ideas. As a matter of fact, the creation comes from the effort and creativity of its author. The essence of this theory emanates mainly from John Lock’s idea that an author has a natural right over the productions of their intellectual labour. In other words, this theory does not make any difference between intellectual property and the traditional tangible property including the right to use, to exclude others from use and the right to transfer the owned object. Accordingly, anyone who violates the intellectual right of an author, creator or inventor is considered to commit a theft.

However, clearly, there is a lack of consistency in this theory considering that intellectual rights are based on things that are not naturally appropriable and non-rival. Indeed, we can appropriate them only because the intervention of the public authorities permits it. Besides, such a theory is incomplete because “he (Lock) does not expand on the level of labour required to qualify something as your property and also, whether the property into which the labour is poured ought to be identifiable as that individual’s property”

[1]. What’s more, apparently such a justification also denies the fact that most of the creations are created not only from the intellectual labour of the creator but also from unowned resources.  Indeed, “new creators inevitably and usefully build on predecessors. In this sense, intellectual property is rarely a creation from nothing”[2].

 

SECTION II: THE UTILITARIAN THEORY

By definition, this theory is based on the fact that the industrial progress and cultural goods have a beneficial effect on the society. Consequently, in order to promote the inventions and creations, the titular needs a guarantee that the outcome will be superior to the costs of his work. As a matter of fact, intellectual rights represent an artificial encouragement from the State for the production. In short, the incentive theory justifies the intellectual rights because of the profit they bring for the whole society.

However, we could question the idea that it is indispensable to have an incentive to encourage the production. In second thought, can we really affirm that the author will give up creating without privilege? Nothing is certain.

 

SECTION III: THE ETHIC AND REWARD THEORY

This theory justifies the exclusive rights of intellectual property with some moral and ethical aspect. Indeed, the ethic requires a fair and proportional contribution for the effort that the creator has made for the social utility. The exclusive rights are “an expression of gratitude to an author for doing more than society expects or feels that they are obliged to do”[3].

However, since rewards are given to people who did something disagreeable and grievous for the benefice of the whole society, we could question whether creators and inventors truly deserve it. By admitting that they do, it is obvious that they definitively do not deserve it twice. Some consider that the inventor is already remunerated considering that if the invention is really in advance, the time between the apparition of his invention and the first copies will give him enough profit to reward him. In this case, it is evident that the exclusive right is far more excessive.

 

SECTION IV: THE PERSONHOOD THEORY

According to this theory, the personality of everyone builds itself in work and creation. The developing of the personality is inherent to the property right we have. Hegel, who is the main source of this theory, claims that intellectual rights permit and protect the developing of the personality, which extends to the material things. In the same way, the copier is considered as a thief who offers to the public someone else’s spirit.

However such a justification is deficient in the sense that the personality is not linked nor affected by the outcome of the creation because it is not constitutive by itself of the human person. Indeed, when the creation is done, the work is independent from its creator but dependent on the public. As a matter of fact, the work obtains substance only because the others decided to attach importance to it.

 

CONCLUSION

In conclusion, is intellectual property a right or a privilege? Even if both words mean actually the same, both are considerably different in their social significance.

Clearly, none of the justifications have enough consistency to justify the artificial creation of arbitrary limits. After a closer inspection, we could ask a question about proponents: In fact, don’t they ignore reality in order to protect their theories?

 

[1] S. Bains, ‘Personality  rights: Should the  UK grant celebrities a proprietary  right in their  personality?’ (2007) Ent. L.R. 18(6) 205,207

[2] Dibble W., ‘Justifying intellectual property’ (1994) 1 UCL Juris. Rev. 74-76

 

[3] Bently L. and Sherman B., Intellectual Property Law (3rd edn Oxford University Press 2008), 36

2017-04-26T01:59:56+00:00October 19th, 2016|Non classé, We like, We share|