Dhruv Shekhar, Suryaksh Manot, & Nirav Bakshi
Intellectual property may be broadly understood as property created by the mind or the power of thought. The rights to intellectual property have been historically contested as challenging the traditionalists’ belief of rights not arising out of non-property. Intellectual property is asymmetric to the traditionalist understanding of property because ideas, inventions, and other manifestations of human expression can be included. However, with the passage of time, several moral and philosophical justifications to intellectual property rights (IPR) have emerged.
John Locke, in his Second Treatise on Government, put forward an analysis of labor that has been applied to IPR. Locke’s writing is based on two foundations: First, that “God has given the Earth to… Mankind in common… for the Support and Comfort of their being.” Through this, Locke attributed a divine directive towards self-sustenance, which is required for the consumption of property. Second, Locke justified accumulation or exclusivity of property by adding a proviso to the commonality of man and resources by claiming that “every man has a property in his own person” and that “the Labour of his body, and the work of his hands… are properly his” and “excludes the common right of men.” Scholars support including of creations of the mind as property as they are the fruits of one’s labor. Creation, such as intellectual property, is an extension of one’s personhood and, thus, the creator has rights to it.
An economic impetus to the presence of IPR as stimuli to the free market mechanism has also been extended. The main argument is that exclusion limits diffusion. The limits on diffusion impair collective gain from the excluded intellectual property. Proponents of this belief argue that raised prices allowed by intellectual property adversely affect the free market and raise the price over the marginal cost. This lessens the number of people buying the good due to an increased price. Further, this adversely affects absolute social welfare because of lesser consumption.
However, when the possibility of raised costs is removed, the incentives that drive intellectual property weaken. This is known as the instrumental justification to intellectual property, as it explains how intellectual property rights induces desirable behavior. F.M Scherer has stated that “if pure and perfect competition in the strictest sense prevailed continuously… incentives for invention and innovation would be fatally deceptive without a patent system or some equivalent substitute.” Thus, even in a perfect and free market, complete complacency and lack of incentives is not necessarily a boon.
Some argue that original ideas would not have emerged without economic incentives—they promote creativity and innovation. It was, perhaps, this belief which was accepted by the United States Supreme Court in Mazer v. Stein, which stated that rewards or incentives should be protected to “accord greater encouragement to the production of literary works of lasting benefit to the world.” The Court also stated that granting patents and copyrights is the best way to advance public welfare through the talents of authors and inventors.
Another ground to assert this stance is to examine it on the ideologue of “Originality”, regarding the case of Feist Publication v. Rural Telephone Service Co. This case laid down the basis for using originality as a barometer for copyright. The mere inflow of effort is not a basis to restrict information; rather, the uniqueness and value in addition to the personhood of the inventor are used.
Furthermore, the 1966 President’s Commission Report set a four-fold basis to revamp the patent system with an underlying set of fiscal validations. To begin, the compensation received by inventors serves as an incentive for them to explore and create. This sets the basis for capital investment which pays dividends to the innovator and promotes economic growth. Furthermore, with exclusive control of the invention, there is an increased level of competition, resulting in the automatic advancement of existing technology. With a protectionist regime in place, an open network aimed at exchange and advancement of technology is created.
This is evident in software development. Developers co-operate at a global level within a “general public license,” which does not allow any proprietary restrictions on software created on the platform. This led to the birth of Linux and Android. Thus, flexible governance structures, instead of complete openness or absolute exclusion, will be the future of governing intellectual property.
A regime which entails a free flow of dissemination of information without any control mechanisms is not only harming the economic interests of the inventor but stunting entrepreneurial, industrial and, more poignantly, innovative growth. Simultaneously, it is essential that IPR does not posit any problem with derivative works. A mechanism such as the aforementioned one helps in chartering the next stage of technological and societal advancement. It is also imperative that dissemination of certain variants of information such as the defense and pharmaceutical sectors require a control mechanism.
JOHN LOCKE, Two Treatises on Government (London, 1821 pg. 286)
JOHN LOCKE, Two Treatises on Government (London, 1821 pg. 285)
JOHN LOCKE, Two Treatises on Government (London, 1821 pg. 288)
F.M. SCHERER, Industrial Market Structure and Economic Performance (1980, 2nd ed. 444)
Mazer v. Stein 347 U.S. 201 (1954)
Washington Pub Co. v. Pearson306 U.S. 30 (1939)
Feist Publication v. Rural Telephone Service Co. 499 U.S. 340 (1991)