TOWARDS A CRITIQUE OF THE MORAL

FOUNDATIONS OF INTELLECTUAL
PROPERTY
RIGHTS

INTELLECTUAL PROPERTY
Intellectual property refers to creations of the mind:
inventions
literary and artistic works
symbols, names and image in commerce.

WHAT ARE INTELLECTUAL PROPERT Y RIGHTS?

Intellectual property rights are like any other property right.

They allow creators, or owners, of patents, trademarks or copyrighted
works to benefit from their own work or investment in a creation.

INTRODUCTION
In todays globalising based economies intangible forms of property such as
IP are increasingly becoming more important than traditional paradigms of
tangible properties such as land, houses and factories.
Patent , Copyright, Trademark and Trade Secrets are considered ways of
increasing innovations and boosting economies.
The objective of this presentation is to critically review the plausibility of
the moral foundations of IPR, providing the basis for examining whether
stronger protection of such rights is morally defensible.

THE CONCEPT OF INTELLECTUAL

PROPERTY
Meaning of property : According to Macpherson , it has a dual meaning: in
common usage property means things, but in law it means rights in or to
things.
According to Tuck : any right which could be defended against all other
men, and could be transferred or alienated by its possessor, is a property
right.

INTELLECTUAL PROPERTY AS A RIGHT TO

IDEAS
Human mind (representing reason) and external world (representing
experience) are neither identical (monism) nor distinct (dualism) orders. They
mutually constitute each other in the process of historical development. Ideas
can be ontologically seen as the outcome of that mutual constitution (of
reason and experience).

 Three kinds of Ideas : First, there are ideas that are not expressed in symbols
or signs but remain mental entities in the creators mind.
Second, there are those ideas that are expressed in symbols or signs but are
not immediately communicated in society.
Third, there are ideas that are immediately expressed and communicated in
society.
Only in the first category does the creator retain the natural ownership of her
ideas.

 The special ontological character of ideas implies that they differ not only from
physical property but also from other intangible resources such as stocks,
shares and choices in action.
The main differences between ideas, physical property and artificial
intangibles can be summarized in four words: scarcity, separability, time and
exclusion.

 First, while tangibles and artificial intangibles are scarce, due to natural and
political limitations, ideas are abundant. Ideas can be produced by everyone who
wishes to keep them to herself or to share them with others.
Second, while tangibles and artificial intangibles are separable from us, ideas are
not. This implies that we cannot trade ideas in the same way we do with land,
stocks and shares.
Third, while tangibles and artificial intangibles can be used at any one time by only
one person or group of people, ideas can be used simultaneously by everyone
Fourth, while people can be effectively excluded from physical property and stocks
or shares, the same cannot happen with ideas. For instance, it is easy to prevent
someone from using ideas of others in public but difficult to do so with the private
use of ideas.

THE MORAL FOUNDATIONS OF INTELLECTUAL PROPERTY

RIGHTS AS MORAL-CLAIM RIGHTS FOUNDED ON
NATURAL LAW

The moral conception of IPRs as natural rights plays an important role in

justifying legislation for patents, copyrights, trademarks.
Locke introduces the principle of self-ownership as a natural right of each
individual to her own person and labour.
This principle is linked with negative liberty and not utility maximisation.
Locke argues that God gave the world to human beings in common and
provided them with reason to make use of it to the best advantage of their life.

INTELLECTUAL PROPERTY RIGHTS AS A MORAL

NECESSITY FOR PERSONALITY DEVELOPMENT

The moral foundation of IPRs upon personality development derives from

Hegels theory of property.
He conceives of private property as an abstract right related to human
needs and freedom. In order to satisfy their physical needs and develop
their individuality and freedom, people need to have control of resources.
Hegel stresses that both freedom and personality must be translated into
the external objective world by means of private property.

 The crucial question, of course, is whether the moral justification of IPRs as a

necessity for personality development can be philosophically sustained?
So, we see that Hegelian justification of IPRs is quite problematical because :
First ,the personality argument fails in respect of epistemology (the theory of
knowledge, especially with regard to its methods, validity, and scope, and the
distinction between justified belief and opinion).
The second respect in which the Hegelian justification of IPRs fails is in that of
social recognition.

INTELLECTUAL PROPERTY RIGHTS FOUNDED

UPON JUST REWARD

Meaning of just reward : a deserved outcome or result.

Individual creators of innovative ideas and inventors morally deserve to be
rewarded for their qualities and talents.
For instance, authors are only valued for their talent to create original ideas.

INTELLECTUAL PROPERTY RIGHTS AS A

MEANS OF MAXIMISING SOCIAL WELFARE
The moral foundations of IPRs that have been discussed so far are
predominantly deontological and therefore antagonistic to utilitarianism.
Existing research into the socio-economic costs and benefits of IPRs reveals
that, in many cases, they reduce growth and minimise social welfare.

CONCLUSION
This article has critically reviewed the moral foundations of IPRs, arguing that
they are philosophically implausible.
First of all, patents, copyright, trademarks and trade secrets cannot be
sustained as moral rights on the grounds of Lockes labour theory of property.
The social character of intellectual creativity philosophically weakens the
position according to which the mixing-labour theory can be plausibly used in
the moral justification of IPRs.

 Second, IPRs and especially copyrights cannot be justified as a necessity for

personality development.
The Hegelian theory of intellectual property leaves open the epistemological
question of personality embodiment in IP products and fails to resolve the
problem of social recognition of IP creators.
Third, patents, copyrights, trademarks and trade secrets can constitute just
reward for enterprise and merit. Individual creators of innovative ideas and
inventors do morally deserve to be rewarded for their qualities and talents.
Fourth, patents, copyrights, trademarks and trade secrets fail the universal
test of social utility.

 Patents, copyrights, trademarks and trade secrets can be seen rather as

political developments which aim to reproduce the capitalist division of
knowledge and labour at national, international and global levels. In this
sense, it can be concluded that stronger protection of IPRs by governments
such as the United States and global institutions such as the WTO and WIPO is
not morally defensible.