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Abstract
Research in recent history has neglected to address the moral foundations of particular kinds of public policy such as the protection of intellectual property rights (IPRs). On the one hand, nation-states have enforced a tightening of the IPR system. On the other, only recently have national government and international institutions recognised that the moral justification for stronger IPRs protection is far from being plausible and cannot be taken for granted. In this article, IPRs are examined as individual rights founded upon natural law, personality development, just reward and social utility. It is argued that these foundations cannot be philosophically sustained. IPRs constitute morally indefensible political developments which aim to reproduce the capitalist division of knowledge and labour at national, international and global levels. The need for such a critical approach to the moral foundations of IPRs has increased in importance as a consequence of their role in justifying corporate power, globalisation policies and harmonisation of such.
Notes
[1] An earlier version of this article has been presented in the Kosmas Psychopedis Seminar on Theory and Epistemology of the Social Sciences at the Department of Economics at the University of Athens. I would like to thank the seminar participants, especially Nikos Petralias, Manolis Aggelidis, Ioli Patellis, George Faracklas and George Daremas for their constructive comments and suggestions. The article has also benefited from the ideas of Birgitte Andersen and the comments of two anonymous referees of this journal. I am indebted to them for their important contribution.
[2] Patents, copyrights, trademarks and trade secrets are the most common forms of intellectual property. Patents refer to exclusive rights awarded to an inventor to prevent others from exploiting in any way their invention without licence or authorisation for a fixed period of time. By contrast, copyrights are exclusive rights granted to the creators of original literary, scientific and artistic works to prevent others from copying. Trademarks grant exclusive rights to use distinctive signs such as symbols, brand names, and so on. Finally, trade secrets consist of commercially valuable information about production methods and business plans (CIPR Citation2002).
[3] This scheme gives the opportunity to patent applicants to update their applications while these are still being processed (Andersen Citation2003b, p. 2). The scheme encourages not only patent application submissions at an early stage of the discovery (ibid.) but also ‘submarine patents’. The latter term derives from the US patent practice before the amendment of legislation to implement the TRIPS (Trade Related Aspects of Intellectual Property Section) Agreement. Under the old law, patent applicants could easily manipulate patent and trademark procedures in order to keep their applications hidden or ‘submarine’ until a third party would make use of the subject of application. In doing so, patent applicants could maximise their gains from their infringement claims.
[4] TRIPS is one of 28 agreements that constitute the Final Act of the Uruguay Round of Multilateral Trade Negotiations. The negotiations had begun in Punta del Este in 1986 (Drahos & Braithwaite Citation2002, p. 10).
[5] Hohfeld's work was originally published in the form of two articles in the Yale Law Journal. After his sudden death in 1918, Yale University Press reprinted the two articles in the form of a pamphlet entitled Fundamental Legal Conceptions as Applied in Judicial Reasoning by Wesley Newcomb Hohfeld.
[6] Of course, as Waldron (Citation1984, p. 6) points out, ‘a claim-right may involve anything from purely negative duty not to impede P's action to a positive requirement to do what one can to make it possible for P to X. The class of claim-rights therefore includes rights to active assistance as well as rights to negative freedom’.
[7] Waldron (Citation1988, p. 7), for instance, refers to constitutionally guaranteed privileges and claim-rights which often involve immunity.
[8] Wolff distinguishes between liberty and freedom. He argues that ‘freedom concerns the possibility of particular actions. Liberty, however, concerns the permissibility of types of actions’ (Wolff 1997, p. 351).
[9] Cited in Sell & May (Citation2001, p. 473).
[10] Both authors are cited in Bouckaert (Citation1990, p. 792).
[11] Also cited in Bouckaert (Citation1990, p. 793).
[12] These presuppositions refer to resources required for the continuation of society as a whole and not just a group of individual property owners who participated in the process of initial appropriation.
[13] This means that they can do nothing without the agreement of the capitalist.
[14] The more basic or unique the idea, the fewer prospects there are of developing innovations which do not rely directly on the idea itself (Rosenberg Citation2004, p. 91). Here, Rosenberg uses as an example Newton's laws. According to him, ‘effects which require, for example, completely unshieldable forces that are transmitted at infinite speed through all mediums, including vacuums, must rely on Newton's laws, as only gravity fills the bill. There is no way to discover around gravity. By contrast, effects such as the build up of electrical potential in batteries that require, for example, proton donors, can rely on any of a dozen or so acids it is within the chemist's power to synthesize’ (ibid.).
[15] This point was made apparent to me by one of this journal's anonymous referees. I am indebted to him/her for the contribution.
[16] Here, our use of the term ‘intuition’ is philosophical. Intuition refers to rational understanding of ‘self-evident’ truths.
[17] The term ‘natural lottery’ was introduced by Rawls (Citation1971) and refers to talents and abilities that each individual naturally inherits.
[18] Certainly, other versions of (contemporary) utilitarianism are preference-based—that is to say, they focus on the maximisation of preference satisfaction and not on the maximisation of happiness.