Since the development of capitalist societies in the early modern period, the qu
Since the development of capitalist societies in the early modern period, the question of whether the works of inventors and artists need to be protected by law has been disputed.[1] As we know today, the proponents of such protection have won this dispute for now and there is a rigorous, globally connected legal framework in place which protects copyrights, patents, trademarks and trade secrets under the common term of ‘intellectual property’ in almost every part of the world. The common justification for the worldwide legal framework of intellectual property rights is based on two premises. First, that there exists an individual creator of a creative work and that the creative process which brings up the creator’s work is primarily based on individual labour, and therefore the result of this process is to be exclusively attributed to the creator; and second, that without such an exclusive right to exploit and control their works, creators would create less because there would be less monetary incentive to do so, which is bad for society.
In my thesis I will argue that these premises are false because creative processes have to be understood as collective processes, and that even if we believe that private property as such is essential for personal freedom, there is no foundation for the exclusive appropriation of the results of human creativity by individuals. In fact, I will argue that we should abandon the focus on the individual creator altogether and come to a concept whereby not only ideas, but expressions and all the results of creative cultural processes are seen as common goods, accessible by everyone without restrictions. I will argue not only that the concept of an individual creator can be contested, but also that there are few grounds for utilitarian arguments in favour of intellectual property rights even if we still believe in the individual creator.
My work here is about intellectual property rights in a wide sense, but focuses mostly on one of its branches: ‘copyright’ – even though I do refer to patents as well, where it seems appropriate to do so. I will not write about trademark rights in this work, as I do not consider them as being rights that primarily grant exclusive exploitation of creative works, but rather as rights which make sure a product or an organisation is clearly identifiable. This said, it should be possible to categorise trademark rights under competition law rather than under intellectual rights, but I will not discuss this special issue in this paper any further. So, in this essay, the term ‘intellectual property’ means mainly copyright and patents. It is true that intellectual property rights do not share the same attributes in every case. But they have one important similarity. They are about property rights over abstract objects,[2] which makes them in some aspects fundamentally different from general property rights whose subjects are physical objects. I will not give an overview of the history of the d