Edited by Graeme B. Dinwoodie
Chapter 6: The social function of intellectual property rights, or how ethics can influence the shape and use of IP law
Reflecting on the social function of intellectual property rights has today become a necessity for several reasons. Firstly, a movement towards a permanent expansion of intellectual property rights can be observed, resulting from a gradual switch to an economy based on knowledge products and intangibles. Whenever a new intangible value emerges, recourse is made to intellectual property and the mesh of rights becomes increasingly tighter, without the consequences of this multiplication having always been “thought through” in advance. In fact, intellectual property is highly appreciated by economic actors because of its strong deterrent effect on competition: penalties can be very severe (let us not forget that counterfeiting is a criminal offence) and the measures very intrusive (as is the case with seizures of counterfeited goods). Often, the mere threat of using an intellectual property right can suffice to discourage a competitor from engaging in an innovative activity in relation to the protected object. At the same time, as intellectual property rights have gained importance, they have lost transparency. This loss is due first of all to their number, with the classical intellectual property rights (such as copyright, patents, trademarks) having been gradually joined by neighbouring rights, sui generis rights and indeed intellectual property rights that do not reveal their name (like the right to one's own image or the rights of sports events organisers), in some cases relating to the same object.
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