Intellectual Property: A Universal Human Right?

Abstract

Intellectual Property: A Universal Human Right? Robert L. Ostergard* Jr. (bio) I. Introduction Given the ever-widening acceptance of a right to protection of intellectual property (IP), one might assume that there is at least implicitly an equally broad and agreed upon rationale or justification for this right. This, however, is not the case. Among those who write on the subject, there are two dominant, and not at all consistent, lines of reasoning. John Locke’s labor theory of property, one of the foundations of traditional property rights in the modern world, is a logical starting point for attempts to justify intellectual property rights (IPR), that is, the protection of exclusive ownership in intangible objects that acquire their value mainly from creative efforts.1 The second justification for IPR is derived from a traditional doctrine of [End Page 156] utilitarian inference, whereby the right to property is granted based on maximizing the benefits society can obtain.2 Although there are zones of overlap between these two lines of reasoning, even if they are taken together and their zones of disagreement ignored, they do not constitute an adequate or coherent prescriptive theory for the recognition of IP rights. Without a logical foundation for justifying IPR, their consideration as a basic human right seems untenable. Thus, this article presents an alternative argument for the justification of IPR and its manifestation as a human right. Although it is clear that the most frequently offered justifications for a right to IP are anchored in relatively modern theoretical arguments, there are substantially older historical precedents for this policy. Intellectual property issues date to the Chinese Zhou dynasty (1122 BC), when concern arose for commodity identification.3 By AD 835, the Wenzong Emperor barred the unauthorized reproduction of documents, calendars, and other items related to prognostication.4 In the Western world, IPR in the form of patents came into existence around 1500 in Venice and spread to most of the major European powers by 1550, 5 more than a century before John Locke’s work on private property. Gradually, governments recognized rights that owners had to their ideas. Subsequently, states adapted IPR to accommodate the increasingly expansive growth of technological innovations. In the modern era, the claim to IPR has evolved from a state-granted right to a universal human right without substantial scrutiny. This article proposes an alternative view of IPR protection: that not all IPR should be justified. Because the state’s responsibility to provide for people’s physical welfare takes precedence over an individual’s right to profit, the article makes two explicit arguments. The first is that there exists a hierarchy of intellectual objects based on a generally perceived notion of physical welfare. The second is that when discussing IPR, the emphasis must not be exclusively on the rights of producers; IPR must also be examined from the perspective of consumers and the national welfare. Both of these arguments focus on nations’ attempts to fulfill their citizens’ basic needs, which are largely grounded in technologies and processes that [End Page 157] sustain physical well-being. Consequently, if certain individuals have exclusive control of established technologies, other individuals may be deprived of basic products that could contribute to their betterment. Before elaborating on the arguments outlined above, this article explores the differences between traditional property and IP, as well as the two traditional theories used to justify IP rights. The article also considers the role that IP plays in contributing to people’s welfare, and concludes with an examination of the conflict that exists between developed countries that favor strong universal IPR protection, and the developing countries that favor greater access to technologies for all nations based on human rights considerations. II. Property Rights and Intellectual Property Theory Property, in one form or another, has been a concern in many of history’s struggles for fundamental rights. The Magna Carta (1215), 6 the US Declaration of Independence (1776), 7 the French Declaration of the Rights of Man and Citizen (1789), 8 and the Universal Declaration of Human Rights (1948) 9 all recognize property rights in some form. Generally, this right to property refers to tangible items, such as land, business establishments, housing, and...