Abstract
In order to determine the extent to which intellectual property rights should enjoy protection under the constitutional property clause, some of the classical and newer justificatory theories for property may be employed, including the labour theory, reward theory, incentive theory, theory of natural law, spiritual theories, personality theory, economic theory, and theory of natural monopoly. These theories must be applied in line with the Constitution, keeping in mind that other fundamental rights must be balanced with the protection afforded to intellectual property in order to ensure its continued production. It is also important that intellectual property statutes be developed to promote a thriving intellectual commons.
Highlights
An important question that forms part of an analysis of constitutional property protection for intellectual property rights[1] is whether protection for these interests may be justified
Intellectual property should be approached in terms of property rights instead of treating it in terms of the language of privileges[5] and in South African law this appears to be the case: intellectual property statutes provide property rule-type protection to intellectual creations and private law respects this position
Where a particular resource enjoys no legal protection yet and it may be determined that there is no ground for moral non-excludability, an argument may still be made for such a resource to receive property protection based on the labour theory
Summary
The incentive theory builds on society's interest in intellectual property works, holding that legal protection for intellectual works serves as an incentive for the production of more intellectual works that will benefit society.[117]. The incentive theory advocates promoting the creation of valuable intellectual works by granting property rights in such works since copyright, patent, and trade secret property protection provide the only adequate incentives for the creation of a socially optimal output of intellectual products.[118]
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