Intellectual Property and Theories of Justice
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Fourteen philosophers, economists and legal scholars address the question 'Can intellectual property rights be fair?' What differentiates intellectual from real property? Should libertarians or Rawlsians defend IP rights? What's wrong with free-riding? How can incentives be taken into account by theories of justice?
incorporated in one’s project will only become one’s property if it complies with the Lockean Justifications of Intellectual Property 45 stated condition. The prima facie claim generated by the positive aspect of the principle of original acquisition is finalised only if it meets the terms set by the Lockean proviso. Locke proposes two such provisos. The first is the non-spoilage proviso and it appears to follow from the same rationale of the general justification of property, namely,
ownership of these ideas, and the intensive marketing by the owner that often comes with it, might very well make things worse in so far as they encourage wider use of these products. For example, the high profits expected in the production and development of new drugs induces the pharmaceutical industry to engage in some practices of questionable value such as direct-to-consumer advertising. Most newly patented and marketed medications do not constitute an improvement on available generic drugs,
conditions are examples of such goods. Non-rivalry means that each individual’s consumption does not subtract the good from any other individual (Samuelson, 1954). Unlike machines, which are ordinary goods of private consumption, ideas embodied in new machines are of non-rivalrous consumption in the sense that ‘no one possesses the less, because every other possesses the whole of it’ (Jefferson, 1813). As Jefferson famously put it, ‘he who receives an idea from me, receives instruction himself
highlighting the implications for the design of intellectual property law. My conclusion is that the second and third models offer the best normative rationales for the current state of intellectual property law in the US and the European Union and are the normative framework that informs international intellectual property law as promulgated through the TRIPS Agreement. After elucidating the normative implications of conceiving of intellectual property as regulation, I turn in the next section
clearly unfair. However, it is unfair with respect to the paying consumers who finance the production, but not necessarily unfair to the creators. Harmless copying in the absence of market interaction Let me turn now to a second line of argument which shows that illegal downloading or copying is not necessarily a form of morally reprehensible free riding, even if the music market were not of the winner-takes-all type, and if copyright were pitched at an adequate level. It may be 152 Geert