Research Handbook on Human Rights and Intellectual Property
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Research Handbook on Human Rights and Intellectual Property

Edited by Christophe Geiger

Research Handbook on Human Rights and Intellectual Property is a comprehensive reference work on the intersection of human rights and intellectual property law. Resulting from a field-specific expertise of over 40 scholars and professionals of world renown, the book explores the practical and doctrinal implications of human rights on intellectual property law and jurisprudence. In particular, the chapters scrutinize issues related to interactions among and between norms of different legal families, the role of human rights in development of the balanced intellectual property legal framework, standing case-law of national and regional courts and intellectual property offices reconciling overlapping rights and obligations, and identify the practical significance of different human rights for the exercise of intellectual property rights.
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Chapter 6: Human rights and the philosophical foundations of intellectual property

Daniel Gervais


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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