The debate about the justification of intellectual property rights is as longsta
The debate about the justification of intellectual property rights is as longstanding as these rights have been implemented under the jurisdictions of Western societies. Over time, three classical justifications have been developed, which are often used in combination to argue in favour of intellectual property rights. One characteristic of these rights is that they grant monopoly rights for the economic exploitation of a creative work or an invention for a certain time period. But interestingly, it seems to be clear, even for the strongest proponent of such monopoly rights, that some restrictions to the execution of intellectual property rights have to be set. In this part I will give a short overview of these classical justifications and their widely accepted restrictions in modern societies. We have to examine these justifications partly to set the focus of this work and partly to illustrate the challenges each justification faces even in its pure form, not to mention in the combinations in which they are often used.
Justification by natural law
The most common and most important justification starts with Locke’s natural law justification for appropriation of worldly resources. Locke starts with his important claim for self-ownership, from which he concludes that a person not only owns himself, but also the results of his work, as long as he leaves enough and as good for others (Locke 2005 [1690]: Chapter V). The concept of self-ownership and the just appropriation of natural resources is challenged by many egalitarian philosophers (e.g. Cohen 1995) and in libertarian philosophy it is disputed whether self-ownership can be conceived of as compatible with the idea that natural resources should be distributed in some egalitarian way (Vallentyne 2000). I will not question the self-ownership thesis itself in this work, but will show that even if we rely on it, we cannot derive any intellectual property rights from it. Locke asserts that the intermingling of the self-owner’s labour with natural resources makes the result of this work his property. And even if this ‘mixing’ metaphor has generated a lot of critics, it has remained one of the most-used arguments for the justification of the appropriation of natural resources and the results of creative processes.[1] The natural law argument for intellectual property then states that a creative work is the result of the author’s labour, therefore he is the only owner and the one who deserves to benefit from it exclusively.
If we want to challenge the natural law justification while holding the self-ownership thesis to be true, we could try to show that the Lockean proviso, which requires the appropriator to take only as much as leaves enough for others, can be used to challenge intellectual property rights because with monopoly rights, there is nothing left for others. I will not do so in this essay.[2] I will rather question in Chapter Three the assumption that creative works or inventions are primari