Three main justifications offered for intellectual property rights (IPRs) are: reward for labour (John Locke), personality-based (GWF Hegel) and incentive-oriented (Jeremy Bentham/Utilitarian) theories. The reward for labour and personality theories are from the deontological/normative school of thought, while the incentive-oriented theory is from the consequentialist school of thought.
Labour
The reward for labour (Lockean) theorists argue that inventors deserve to own intellectual works as a reward for the efforts exerted to create them. A popular version of the Lockean reward theory posits that all resources are part of the ‘commons’, however a person can expend labour on common resources to produce new products. The new products derived from the use of the one’s intelligence, skills, efforts and resources (‘sweat of the brow’) becomes the person’s personal or private property, as long as the person leaves ‘enough and as good for others’ and does not waste what is taken. The basic principles maintained here are ‘everyone has an inalienable right to his labour’ and people ought to be entitled to the fruits of their labour. Locke’s theory is criticised for being suited to finite resources such as land, but not infinite resources such as IPRs. Although the tenets of the Lockean theory are extrapolated to justify IPRs, Locke never mentioned IPRs.
Personality
The personality-based (Hegelian) theorists contend that intellectual works are an extension of creators’ personalities and reflect their character. Therefore, creators ought to have control over their works to respect their dignity, reputation and personhood. Unlike Locke, Hegel briefly mentions IPRs. Hegel declares that granting people property rights over their creations is part of what it means to treat them as autonomous beings. A criticism of the personality-based theory is that it prioritises the interests of the original creators, restricting others use or expressions of the protected works. Another criticism is that it is particularly suited to artistic and creative expressions protected under copyrights, and not technological products protected under industrial property. Technological products are mainly invented to solve specific needs, and do not necessarily reflect the inventor’s personality. For example, it would be difficult to refer to Thomas Edison’s light bulb as an extension of his person.
Incentive
The incentive-oriented theorists do not justify IPRs based on inventors’ individual interests. Rather, they justify IPRs on the basis that it stimulates innovation and serves public interests. According to this argument, the exclusive rights and monopoly that IPRs offers motivates inventors to invest resources in developing new products. If products could be easily copied without penalties, there would be no incentive to invest in original products. A counter argument is that monopolies hinder competition and innovation. In addition, some inventors may be motivated to innovate for other reasons such as interest, passion, desire, pleasure, curiosity, expression, reputation or to solve societal needs. However, inventors not motivated by IPRs, may still apply for protection where it is available. For example, although Amazon got a patent for its ‘1-click’ technology, its founder, Jeff Bezos states that Amazon would have developed the technology, even if it was not patentable.
Challenging task…
The intangible, sometimes essential and mostly non-rivalrous nature of intellectual products generates questions about appropriate reward mechanisms and justifications for IPRs. The underlying issue in debates about justifying IPRs is ascertaining suitable national and international IPRs regimes that balance the competing interests of different stakeholders such as inventors/creators, consumers, investors and the state.
