Chapter 3: The moral dimension of justification
Given the theory developed in the last chapter about morality and the way moral concepts work, IPRs must have two features in order to be justifiable. First, IPRs cannot be absolute. The equal right to freedom and well-being that lends support to IPRs also requires that the non-IPR owning public has some form of right of access to the intellectual objects of such rights where this is necessary for the promotion or protection of the liberty and well-being of each individual human being as an equal person. This tension is captured explicitly in the UDHR: in the participation right (Article 27(1)) and the authors’ (and, arguably, inventors’) protection right (Article 27(2)), regarding the productions of authors and inventors (cf. §4.1.1). The design of the IPRs and their limits must reflect this tension. The second feature of a justifiable IPR regime flows from the way the tension between the protection and participation right is resolved, the way our general principles are given definition, and tends to be revised and refined with new and reformed commitments. This suggests that, given universal prescriptivism, the only way a legislator who intends to create an institution that is justifiable can go about achieving this is to express that intention and build into the rules of that institution the elements that allow such revision.
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