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On the legitimacy of intellectual property rights

Author: HuChaoYang
Tutor: GongTingTai
School: Nanjing Normal University
Course: Legal Theory
Keywords: intellectual property rights (IPR) justification private rights public rights human rights
CLC: D913
Type: PhD thesis
Year: 2006
Downloads: 1058
Quote: 6
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Abstract


Industrial Revolution in modern times has both given ironclad proof of function of the intellectual property rights (IPR), and make a show of justification of IPR in history and economy. As private rights varied from feudal privilege, IPR are results of the separation of bourgeois society and political state and also results of the change of social history. It has brought to light that IPR is the inevitable outcome of the institutional change of social history by investigating the origin of IPR in the method of law sociology. As monopoly privilege with the characteristic of authorization, IPR are the efficient institutional arrangement of property rights given authority to intellectual results as public good by modern states. It has brought to light that the institutional innovation of IPR is necessary in economy by studying the institutional arrangement in the method of law economics. However, with the dysfunction of IPR manifested itself and known by the public, IPR as a institution has been up against a crisis of acceptability that has given rise to introspection about justification of IPR. By analyzing the attribute of rights in both private rights and public rights of IPR, we can find that IPR should be built upon the both two aspects of basic value of human rights, which IPR should not only encourage the creation of knowledge and promote the spread of knowledge, but also guarantee monopoly of knowledge ad achieve share of knowledge. Only when keeping balance between private rights and public rights, then establishing their basic value of human rights, IPR can virtually show their justification. Introspection about justification and the crisis of acceptability of IPR is the reflection of the deviation of justification in appearance of IPR from its justification in fact, and also is the reflection of the loss of basic value of human rights. By observing and studying the institutional change of property rights in the method of law sociology, it has brought to light that the development of capitalization of sci-tech and its globalization, which has been promoting the tendency of capitalization and globalization of IPR, has led to the crisis of acceptability of IPR as a institution and the deviation of justification in appearance of IPR from its justification in fact. We can give such examples that the extension of IPR as private rights is in contradiction with guarantee of basic human rights, and that the expansion of“Digital Divide”in the international society becomes the restriction of the spread of knowledge. Therefore, the coordination and response in institution should be carried out around the international society, which aims at not only confining the extension of IPR as private rights and guaranteeing the achievement of IPR as public rights, but also narrowing the expansion of“Digital Divide”and encouraging the spread of knowledge. For these reasons, we should introspect the basis of the philosophy of the law about justification of IPR once again. The theory of Locke’s natural right about property right of labor gives ironclad proof of the attribute of IPR as private rights, but not gives sufficient annotation on their attribute as public rights. We are inclined to realize economic results by the theory of Bentham’s utilitarianism, which can take account of the balance between private rights and public rights, but which cannot give consideration to the basic human rights concerning the beneficiary in minority especially in developing country under the tendency of capitalization and globalization of IPR. According to Max’s theory about value of labor and the alienation of labor, although the emergence and the existence of IPR as private rights show their inevitability in history and rationality in economy, once creative labor as alien labor were integrated into the movement of capitalization of sci-tech and its globalization, it could be presented about the trend of the extension of IPR as private rights and its strong protection in integral globalization. Jürgen Habermas etc point out that the science and technological progress has been facing up against the crisis of legality by virtue of alien rationalization of sci-tech in the era of post-industrialization, which cannot do without the improvement of institution with the basis of both coordination and consultation under the condition of humanitarianism. Accordingly, the function of sci-tech in the ideological field can temporarily dispel the crisis of justification about the extension of IPR as private rights, but it is difficult to make up for the contradiction of freedom and equality, especially the deviation of equality in appearance from equality in fact. This demonstrates that the justification of IPR should be tried to justify by more extensive basis of the philosophy of the law. The Nozick’s theory of justice about holding has partiality for the equality of opportunity, which may be embraced by the state or man with enough IPR owned by itself or himself. However, the Rawls’s theory of justice about distribution pays attention to the equality of result, which may be accepted by the state or man with deficient IPR owned by itself or himself. In fact, with the development of both relative state sovereignty and limited international human rights under the tendency of globalization, the state with deficient IPR owned would be facing the difficulty in acting on it’s own way of development about IPR, but it is the common main topic faced by international society to strive for the justification in fact and to coordinate the value contradiction of freedom and equality in the field of IPR protecting. As a developing country on the upgrade, China should dialectically treat the influence of capitalization and globalization of IPR. Moreover, China should take such measures as intensifying the institutional program of strategy about IPR, completing the social basis of institutional operating about IPR, and improving the international environment of cooperative exchange about IPR etc, which are the realistic need to ensure justification in fact and the beneficial function about IPR.

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