Jurisprudential Theories on IPR
Jurisprudential Theories on IPR
According to Article 27 of the Universal Declaration of Human Rights, “everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”. Although the relationship between intellectual property and human rights is a complex one, there are moral arguments for intellectual property. The arguments that justify intellectual property fall into three major categories.
Personality theorists believe intellectual property is an extension of an individual. Utilitarians believe that intellectual property stimulates social progress and pushes people to further innovation. Lockeans argue that intellectual property is justified based on deservedness and hard work. Various moral justifications for private property can be used to argue in favor of the morality of intellectual property, such as: 1. Natural Rights/Justice Argument: this argument is based on Locke’s idea that a person has a natural right over the labour and/or products which is produced by his/her body. Appropriating these products is viewed as unjust.
Although Locke had never explicitly stated that natural right applied to products of the mind, it is possible to apply his argument to intellectual property rights, in which it would be unjust for people to misuse another’s ideas. Lokeans argument for intellectual property is based upon the idea that laborers have the right to control that which they create. They argue that we own our bodies which are the laborers, this right of ownership extends to what we create.
Thus, intellectual property ensures this right when it comes to production. 2. Utilitarian-Pragmatic Argument: according to this rationale, a society that protects private property is more effective and prosperous than societies that do not. Innovation and invention in 19th century America has been said to be attributed to the development of the patent system. By providing innovators with “durable and tangible return on their investment of time, labor, and other resources”, intellectual property rights seek to maximize social utility. The presumption is that they promote public welfare by encouraging the “creation, production, and distribution of intellectual works”.
Utilitarians argue that without intellectual property there would be a lack of incentive to produce new ideas. Systems of protection such as Intellectual property optimize social utility. 3. “Personality” Argument: this argument is based on a quote from Hegel: “Every man has the right to turn his will upon a thing or make the thing an object of his will, that is to say, to set aside the mere thing and recreate it as his own”. European intellectual property law is shaped by this notion that ideas are an “extension of oneself and of one’s personality”.
Personality theorists argue that by being a creator of something one is inherently at risk and vulnerable for having their ideas and designs stolen and/or altered. Intellectual property protects these moral claims that have to do with personality. Lysander Spooner (1855) argues “that a man has a natural and absolute right—and if a natural and absolute, then necessarily a perpetual, right—of property, in the ideas, of which he is the discoverer or creator; that his right of property, in ideas, is intrinsically the same as, and stands on identically the same grounds with, his right of property in material things; that no distinction, of principle, exists between the two cases”.
Writer Ayn Rand argued in her book Capitalism: The Unknown Ideal that the protection of intellectual property is essentially a moral issue. The belief is that the human mind itself is the source of wealth and survival and that all property at its base is intellectual property. To violate intellectual property is therefore no different morally than violating other property rights which compromises the very processes of survival and therefore constitutes an immoral act.
As spooky as some of this might sound, European copyright law recognizes certain “moral rights” of an author. These rights, such as the right to receive credit for authorship, never expire, and bear no exceptions. If interpreted broadly, the Self-Expression justification is perhaps the best argument for an author retaining strong control over derivative works. A fan writing using an author’s character in a story takes the character out of the author’s control. Something very personal to the author has been manipulated without his knowledge or consent.
If some readers confuse for the fan story for the author’s own work, they might develop a distorted idea about the author’s style and personality. These threats are intolerable on a strong reading of the Self-Expression justification. Now, I hold that there are other concerns at stake that override any sense of threatening the author’s integrity, but that’s a paper I’m currently trying to publish.
The most obvious concern with the Self-Expression justification is its failure to justify a wholesale system of intellectual property. If you don’t see what I mean, think about it like this: you have a lot of furniture in your house. Some pieces you might have had growing up, some you might have gotten from friends or family members, and some you just bought because you needed them.
Now, imagine that one morning, you woke up and found that your ottoman, the one that you bought for the cat to sleep on, is missing, and in its place is a pile of money, enough to buy a brand new ottoman. Substitute any personal object you own and don’t really care about and mutatits mutandis if the furniture example doesn’t work for you. The Self-Expression justification is very plausible when talking about the dining room table you got from your grandparents’ house, but much less so when considering that ottoman.
Intellectual property is no different. Some authors pour their hearts and souls into novels, poems, musical compositions, or films. Others are just interested in making money and happen to be very good at what they do. I’m sure many authors find themselves in both categories from time to time. Nevertheless, the Self-Expression justification has the most force when the work has the most personal meaning or significance. When a creative work is an economic product, it’s not clear what rights an author would have.
One could treat all authors as if their works were expressions of their innermost selves unless they waived their rights somehow (though the moral rights in European intellectual property law simply cannot be waived). In that case, the practice would be instituted for a reason that does not universally apply. Furthermore, it seems bizarre to imagine an intellectual property case being decided in favor of a defendant who argued that the plaintiff “did not really care” about his works.
I would hope it isn’t the law’s place to dictate to us what is art (though they do seem to try), so the Self-Expression justification is only a partial justification for an intellectual property system. Nevertheless, it does get employed in argument about derivative works and fair use.