Research Handbooks in Intellectual Property series
Edited by Christophe Geiger
Chapter 6: Human rights and the philosophical foundations of intellectual property
Some claim that intellectual property rights have their roots in natural law, most famously as the Lockean labour-desert theory, which sees property rights as commensurate with ‘the sacrifice actually incurred.’ According to this view, property is justifiable as a (just) reward for work done to create new works from the existing stock of public domain works and ideas, or on a significant, industrially useful improvement on the existing stock technological knowledge. Locke’s original theory turned on the labour sacrifice of a particular landowner. He did not advocate for specific rights in intangibles. Indeed, applying his theory to intangibles raises interesting questions. For instance, if one were to adopt a natural law-based justificatory theory for intellectual property, then one might ask whether the protection of intangibles should be commensurate with the author’s or inventor’s efforts. Alternatively, one might ask what kind of value (societal, economic, etc.), should be rewarded and then measured according to which set of metrics? How would temporal elements be factored into the equation (i.e., what is the value now and 20 years hence?), as would the transaction costs of this determination. And the list goes on. As possible normative counterweights to Lockean-derived narratives, the various ‘personhood’ and deontological theories – also anchored in natural law – provide an alternative basis for at least some forms of intellectual property.
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