From Swords to Ploughshares
Elgar Law and Entrepreneurship series
Edited by Lateef Mtima
Chapter 12: From swords to ploughshares: Towards a unified theory of intellectual property social justice
Intellectual property social justice provides a context through which to consider the role of intellectual property protection in the total political economy. Like all other social ordering mechanisms, intellectual property protection is but one function within a complex and organic social system designed to promote the well-being of the societal body as a whole. As intellectual property has moved to the forefront of daily life, however, scholars, activists, and policy makers have called for a greater harmonization of intellectual property protection with other important social mechanisms and objectives. Toward this end, leading “IP social reformists” have argued that prevailing intellectual property norms can and should be socially rehabilitated by resorting to appropriate extrinsic disciplines, such as human rights jurisprudence and critical legal theory, so as to infuse the intellectual property regime with a progressive social consciousness. Intellectual property social justice occupies a unique space in the IP social reform discourse. Whereas the predominating reformist rhetoric confronts the challenge as one of importing pertinent social values into the IP regime, intellectual property social justice eschews any implicit conceptualization of intellectual property protection as inherently devoid of non-economic/socially benign objectives. Whether as an implement of positive social law or an acknowledgement of natural rights and the “social contract”, the ultimate function of intellectual property protection is to cultivate human development and advancement: the intellectual property regime is structured to encourage, access and apply human creativity and innovation because it is socially useful to do so.
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