Hey everyone! I wanted to briefly discuss the various dominant theories that are used to justify the grant of intellectual property rights and some of their shortcomings. Some of these theories have been mentioned during the course. Please see the discussion below:
One of the prominent justifications for the grant of Intellectual Property rights is based on John Locke’s labour theory.[1] The basis of this theory is that “people are entitled to hold, as property, whatever they produce by their initiative, intelligence, and industry.”[2] Put differently, John Locke believes that subject to certain restrictions, everyone is entitled to the fruits of their labour.
In the Second Treatise of Government, he states that “every man has a property in his person: that nobody has any right to but himself. The labour of his own body and the work of his own hands we may say are properly his.”[3] Locke believes that there is an abundance of natural resources provided by God for the benefit of all and that these resources do not belong to anyone.[4] He refers to this pool of resources as the commons. However, he states that a person becomes entitled to appropriate resources from the commons if he or she exerts labour to improve these resources.[5]
This appropriation is contingent upon Lockean’s enough and good provision which means that to be able to appropriate anything from the commons, the individual must ensure that he or she does not take more than needed and leaves enough for other commoners to enjoy.[6]
Locke justifies this theory with the principle of self-ownership.[7] He argues that except for slaves, an individual owns himself and by extension owns his labour and anything mixed with his labour.[8] He also asserts that the resources available in the commons inherently have little to no value until they are combined with an individual’s labour.[9] In addition, he believes that appropriators have an unconditional right to sustenance and would be unable to achieve this if they needed everyone’s consent before they could take from the commons.[10]
Although Locke’s theory focused on the physical property, many argue that this theory can be used to justify the grant of intellectual property rights. Specifically, proponents of this extension such as Frank Easterbrook have stated that intellectual property is “no less the fruit of one’s labour than is physical property.”[11]
This extension is illustrated in the copyright law of some jurisdictions that believe that copyright should subsist in a work that is created by the author and is not a mere copy of another work. See the case of University of London Press Ltd. v. University Tutorial Press Ltd., [1916] 2 Ch. 601; U & R Tax Services Ltd. v. H & R Block Canada Inc. (1995), 62 C.P.R. (3d) 257 (F.C.T.D.) This relatively low threshold for originality can be traced to Lockean’s sweat of the brow theory.[12]
However, this standard does not apply to Canada, which requires the exercise of skill and judgment.[13] Despite this theory’s influence, many argue that it has no place in intellectual property.[14] Firstly, critics argue that the labour required for the appropriation of physical property differs from the labour required to create intellectual property.[15] The earlier as described by Hughes’ avoidance theory requires onerous toil.[16]
One of the major critics of this theory is Nozick, who questions why the exertion of labour entitles an individual to intellectual property as opposed to being viewed as a loss of that individual’s labour.[17] Specifically, Nozick states that if you mix your tomato juice in the ocean, you lose your juice, you do not become the owner of the ocean.[18]
There is also no specific measurement of the quality or quantity of labour that warrants the grant of an intellectual property right.[19] Furthermore, Jeremy Waldron, a legal scholar, states that Locke’s notion of mixing labour is incoherent and that labour cannot be mixed with objects.[20] Lastly, Hettinger states that besides giving someone exclusive property rights, there are other ways their labour can be rewarded such as monetary rewards and accolades.[21]
From the criticisms above, it is evident that justifying the grant of intellectual property solely based on this theory is inadequate. Locke’s theory does not take into cognizance that sometimes works are collectively made or built upon works previously created by others. It is hard to see how enough can always be left for others in the commons when the intent behind the intellectual property is to monopolize things.
G.W.F. Hegel Immanuel Kant
Another justification for intellectual property rights is rooted in the writings of Immanuel Kant and George Hegel.[22] This is known as the personality theory. Under this theory, an author’s work is seen as the extension of his/her personality and the “copier of the author’s work is a thief who offers to the public someone else’s spirit.”[23]
This theory is particularly evident in countries such as France and Germany which focus on le droit d’auteur and urheberpersönlichkeitsrechte, unlike countries that adopt the Anglo-Saxon approach of copyright.[24] France focuses on the right of the authors and believes that copyright should subsist in works that have an imprint of the author’s personality.[25] In contrast, countries like Canada that focus on copyright, see works as articles of commerce and place more importance on economic rights.[26] However, Canada’s copyright act still makes provisions for moral rights which focuses on preserving the integrity and intent behind a work.[27]
However, the application of this theory to intellectual property has been criticized because not all works reflect the author’s personality.[28] For example, examination papers and technological patents for air conditioners. In addition, an individual can create intellectual property that does not align with their feelings or values for other reasons like monetary compensation or recognition.[29] In addition, some believe that once a work is created, it no longer attaches to the creator and is dependent on the public to give it substance and importance.[30] Therefore, they see the creation of works as the abandonment of personality than as establishing property claims. In my opinion, basing the grant of intellectual property rights solely on the author’s personality is reductionist as there are other possible reasons why the intellectual property should be granted.
The last justification to be discussed stems from the Utilitarian theory which is utilised in several Anglo-American systems of intellectual property. It was primarily developed by Jeremy Bentham and John Stuart Mill.[31] It is based on the idea that an activity is fair if creates more happiness than existed before.[32] This is described by Betham as the greatest good for the greatest number.[33] When applied to Intellectual Property, the theory focuses on how beneficial intellectual property is to the whole society. Proponents of this theory believe that IP laws encourage the optimal production of work which leads to a corresponding increase in social utility.[34] It also believes that monetary gain acts as an incentive for creation and innovation.
The theory is based on the belief that to promote the creation of intellectual property, it is necessary to grant limited ownership rights to inventors and authors.[35] Innovators want to know that if they reveal their works to the world, they will be able to recoup the costs incurred in creating the invention.[36] It is argued that intellectual property provides the requisite incentive for this.[37]
Critics of this theory assert that there are other ways to effectively reward creators and innovators for work done.[38] For instance, the government could give grants for the research and development of the intellectual property.[39] While others argue that there is not always a correlation between an increase in intellectual property protection and an increase in the invention.[40] This is because not everyone will be incentivized to create for gain. For instance, there are websites where people provide information for free despite the time and costs incurred.[41]
From a brief discussion of the theories, it is clear that a single theory cannot adequately describe the basis for the grant of intellectual property rights. It may be necessary to rely on all the various theories to provide an adequate justification for why intellectual property rights should be granted.
[1] Moore, Adam & Ken Himma. “Intellectual property”, (18 August 2022), online: Stanford Encyclopedia of Philosophy <https://plato.stanford.edu/entries/intellectual-property/#PersBaseJustInteProp>
[2] Ibid
[3] John Locke, Two Treatises of Government, 2d ed. (New York: Cambridge University Press, 1967), 305-6
[4] ibid
[5] ibid
[6]“Hegel’s Theory Of Personality Analysis”,, online: Hegel’s theory of personality analysis <https://www.ipl.org/essay/Georg-Friedrich-Hegels-Theory-Of-Personality-Theory-FKFCQENFJE86>
[7] Balew Mersha & Kashay Debesu, Theories of Intellectual Property (2012), https://www.abyssinialaw.com/online-resources/study-on-line/item/468-theories-of-intellectual-property.
[8] ibid
[9] ibid
[10] Moore, Adam D. “A lockean theory of intellectual property revisited” (2012) SSRN Electronic Journal.
[11]Easterbrook, Frank. “INTELLECTUAL PROPERTY IS STILL PROPERTY”, (8 March 2021), online: HeinOnline <https://heinonline.org/HOL/LandingPage?handle=hein.journals%2Fhjlpp13&div=25&id=&page=>
[12] CCH Canadian Ltd v Law Society of Upper Canada, [2004] 1 SCR 339, 2004 SCC 13
[13] ibid
[14] Ibid 1
[15] Justin Hughes, ‘The Philosophy of Intellectual Property’ (1988)77 Georgetown Law Journal p.296
[16] ibid
[17] Robert Nozick, Anarchy, State and Utopia (Blackwell Publishing 1974)
[18] ibid
[19] Ibid 1
[20] ibid
[21] Hettinger, E. C. (1989). Justifying Intellectual Property. Philosophy and Public Affairs, 18(1), 31-52.
[22] ibid
[23] Gunten, Andreas Von. “1. the classical justifications for Intellectual Property Rights”, (4 December 2015), online: Intellectual Property Is Common Property <https://onlinebooks.buchundnetz.com/intellectualpropertyiscommonproperty/chapter/1-the-classical-justifications-for-intellectual-property-rights/>
[24] Jus Corpus. “Philosophical and economic justifications of Intellectual Property Rights”, (18 February 2022), online: Jus Corpus <https://www.juscorpus.com/philosophical-and-economic-justifications-of-intellectual-property-rights/>
[25] ibid
[26]ibid
[27]ibid
[28] Yuan, Lily. “Personality theory and intellectual property”, (4 February 2020), online: Personality Psychology <https://personality-psychology.com/personality-theory-intellectual-property/>
[29] ibid
[30] ibid
[31] Ibid 1
[32] Lucie Guibault, Anthony Rosborough. “Canadian intellectual property law”,, online: I General Introduction – Canadian Intellectual Property Law <https://digitaleditions.library.dal.ca/cdn-ip-law/chapter/introduction/>
[33] ibid
[34] ibid
[35] Ibid 1
[36] ibid
[37] ibid
[38] ibid
[39] ibid
[40] ibid
[41] ibid
Communications Law