5. Foundations of intellectual property rights So far in this book, we have considered the various forms of legal protection for intellectual property rights along with the history of how those rights have evolved. We have also confronted the obstacles posed by post-modern philosophy and demonstrated the validity of the traditional conceptions of authorship, genius, and originality. An author-based entitlement remains valid, notwithstanding provocative questions about authorship raised by philosophers such as Michel Foucault. We now turn to the underlying philosophical and normative justification for intellectual property law. It is important to understand the secure normative foundation for the legal infrastructure supporting intellectual property rights. A property right is defined by Landes and Posner (1988, p. 266) as any ‘legally enforceable power to exclude others from using a resource, without the need to contract with them’. These rights offer both static and dynamic benefits: they prevent the overuse or misuse of a resource and they also provide an incentive to create new resources or enhance and improve existing ones. Most philosophers would agree with this definition of a right since they acknowledge that the essence of a property right is the ‘right to exclude others’ (Cohen 1928, p. 12).1 According to W. F. Hohfeld’s (1919) framework, property would be considered a claim-right, such that one individual (the right holder) has a claim on another (the duty-bearer) not to interfere with the right holder’s property or use it against his or her will. In Hohfeld’s classic work on rights theory,...
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