Is IP a Lex Specialis?
ATRIP Intellectual Property series
Edited by Graeme B. Dinwoodie
Chapter 6: Inclusivity in intellectual property
Exclusivity has always been considered as the end and means of property, both in legal thinking and in economic analysis. The right to exclude is deemed to be a core element and a defining feature of a property right. Exclusivity generates two outcomes: (1) exclusion: a right to exclude others from the use of the owned thing; and (2) individuality: a right held generally by one person only. This focus on exclusivity in tangible property resonates too in intellectual property and has been reinforced by a critical view of situations devoid of exclusivity. In ‘The Tragedy of the Commons’, Hardin argues against the commons on the ground that the simultaneous use of resources by many individuals acting independently and according to one’s self-interest would necessarily lead to overuse and depletion. A similar story goes for intellectual property: creation and innovation cannot be depleted or overused, but leaving those in the commons where free-riding is easy due to the lack of exclusivity might lead to underproduction. The grant of exclusive rights is hence justified to incentivise innovation and enable creators to reap the value of their creation. Yet, contempt for lack of exclusivity and commons has started to change in recent years.
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