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Justifications, Copyright 1 (Subsistence) Notes

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JUSTIFICATIONS, COPYRIGHT 1 (SUBSISTENCE) Justifications For IP Rights 1) Natural Rights John Locke

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A man's property rights in an unowned object are justified by his labour.

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Whenever a person mixes his labour with something unowned (e.g. raw materials, land) he thereby makes it his property.

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Proviso: This can only be so where there is "enough and good as left in common for others" o i.e. others must not be made worse off through the generation of new property rights Hegel

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Individuals enjoy an exclusive moral claim to acts and content of his personality. Thus where C expresses his personality in an object, is entitled to ownership of it. o Object contains C's knowledge, character traits and experience

Himma

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"Enough and good as left in common for others" should mean that it always justified to allow IP rights where a creator's content is not necessary for human beings to survive or flourish o e.g. is not necessary for me to read a Charles Dickens novel to survive as a human o thus is no problem with giving rights of author pre-eminence Criticisms Nozick

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Natural rights justification is WRONG When I mix my labour with unowned object, why should I necessarily gain the unowned object?
o Rather than simply losing my labour?
o Pouring a can of tomato juice into sea, I do not gain the sea

Shiffrin

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Is impossible to create something without the influence of others o i.e. no one grows up in a vacuum; we are all product of societal influences o Thus intellectual creations (esp. copyright) are not the product of individual labour, but rather reworkings of other ideas generated by society Therefore given the societal sources which go into forming ideas, anything that comes out of ideas should be owned in common by society o i.e. and not exclusively by creator/inventor

2) Incentive-Based Theories (Utilitarianism) Hettinger

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exist o o

*Only tenable justification for IP is ultimately a utilitarian one. Without IP, adequate incentives for creation of intellectual products would not

i.e. people could simply steal ideas thus no incentive to invest time, money and energy into creating new things However this argument is paradoxical i.e. in order to increase the production and future availability and use of intellectual products, we must give inventors the right to restrict the current availability and use of intellectual products.

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Key question for the utilitarian argument is: what method of control would result in the maximal output and use of intellectual products?

Problem

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Thus although IP may be beneficial on the whole, it impedes progress in the short term in certain areas.

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Might be better to employ different methods of incentivising production of intellectual products.
? e.g. the government could distribute money for intellectual labour with minimal control over what people go on to create

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Is possible that, although IP once served a useful purpose, it is now simply a tool for firms to monopolise ideas. Criticism Boldrine and Levine

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Incentive-based theories are WRONG.

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IP is now achieving precisely the opposite of what it was intended to
? i.e. it stifles innovation, rather than promoting it
? thus leads to loss of social surplus

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Patents: o Firms now spend billions in order to obtain patents for no other purpose than to stop competitors being able to develop technology.

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Copyright o Overly-long copyright terms mean huge numbers of works, which companies have no interest in republishing/redistributing, are unavailable to the public. o Thus copyright is failing in its aim of promoting the progress of science and useful arts

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