Proposals for Reform of TRIPS
Edited by Annette Kur
Chapter 9: Expropriation or Fair Game for All? The Gradual Dismantling of the IP Exclusivity Paradigm
Annette Kur and Jens Schovsbo* 1. INTRODUCTION By characterising intellectual property rights (IPR) as exclusive rights, it is submitted by definition that they confer on their proprietor the entitlement to exclude others from making unauthorised use of the protected subject matter. As it is also widely recognised that IPR enjoy protection under the title of property in the meaning of constitutional laws and even human rights instruments, any encroachment on that entitlement may appear to be a form of expropriation. On the other hand, it is also acknowledged that for many reasons, it would be basically flawed to posit that IPR and tangible property should be treated equally in all respects. Furthermore, in spite of their canonisation as a special type of human rights, and irrespective of the strong flavour of personal rights permeating copyright law, IPR in the first place have been created to “do a job” – namely to foster creativity and innovation. This means that exclusivity should be the dominant regulatory model only where and to the extent that other, non-exclusive schemes cannot achieve the same or even better results, and/or generate more beneficial effects for society as a whole. This does not necessarily mean that access or use must be free whenever exclusivity entails suboptimal effects. Instead, the proprietary element may persist in the sense that the user is obliged to pay for the privilege of unrestricted access. In economic terms, this means that the exclusivity paradigm is transformed into a liability rule. In this chapter, an...
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