The properties of DNA -- DNA as universal property -- DNA as intellectual property -- DNA as national property -- DNA as personal property -- DNA as academic property -- DNA as taxable propety.

Justifications for intellectual property rights are typically made in terms of utility or natural property rights. In this article, I justify limited regimes of copyright and patent grounded in no more than the rights to use our ideas and to contract, conjoined at times with a weak right to hold property in tangibles. I describe the Contracting Situation plausibly arising from vesting rational agents with these rights. I go on to consider whether in order to provide the best protection for (...) the voluntary activities and consensual interactions occurring within the Contracting Situation, it might be appropriate or even necessary to move to institutions qualitatively similar to copyright and patent. I conclude that in at least some circumstances limited regimes of copyright and patent may be defendable solely on the basis of these very basic rights. (shrink)

This book challenges the accepted view by arguing that environmental law must be seen not as a mere instrument of social policy, but as a historical product of ...

In this article I argue that, despite the views of such theorists as Locke, Hart and Raz, most of a person's property rights cannot be individualistically justified. Instead most property rights, if justified at all, must be justified on non-individualistic (e.g. consequentialist) grounds. This, I suggest, implies that most property rights cannot be morally fundamental ‘human rights’.

The goal has been to devise a strategy that protects as much as possible the rights and liberties of all agents, both users of fossil fuels and people whose livelihoods and territories are at risk if the anthropogenic global warming (AGW) hypothesis is true. To achieve this goal the standard climate [...].

Many people take for granted an absolute conception of property rights. According to this conception, if I own a piece of property I have a moral right to do with it as I please, irrespective of the needs of others.This paper articulates an argument against this conception of property rights. First, it shows that there are many possible conceptions of property rights, and that there are significant differences among the models of ownership which have prevailed in different societies. Then, it (...) argues that there are decisive grounds to refuse to grant that property owners have a moral right to exercise absolute control over their property, and that ownership implies not only rights but also duties and limits. (shrink)

The preservationist duties that conservationists would lay upon landowners to protect the natural environment obviously interfere with what those people do with their land. That is often taken to be an equally obvious ? albeit possibly justifiable ? violation of their rights in that property. But to say that, as landowners often do, would be to imply that property rights somehow embrace a ?right to destroy?. Closer inspection suggests that they do not. That would be a further right, additional to (...) and independent of all the component rights standardly associated with the right to private property. A right to destroy is implicit neither in the concept nor in the justifications of property rights, as they are standardly conceived. Conservationist policies cannot, therefore, properly be opposed on the grounds that they would necessarily violate people's property rights. (shrink)

Although the idea of intellectual property (IP) rights—proprietary rights to what one invents, writes, paints, composes or creates—is firmlyembedded in Western thinking, these rights are now being challenged across the globe in a number of areas. This paper will focus on one of these challenges: government-sanctioned copying of patented drugs without permission or license of the patent owner in the name of national security, in health emergencies, or life-threatening epidemics. After discussing standard rights-based and utilitarian arguments defending intellectual property we (...) will present another model. IP is almost always a result of a long history of scientific or technological development and numbers of networks of creativity, not the act of a single person or a group of people at one moment in time. Thus thinking about and evaluating IP requires thinking about IP as shared rights. A network approach to IP challenges a traditional model of IP. It follows that the owner of those rights has some obligations to share that information or its outcomes. If that conclusion is applied to the distribution of antiretroviral drugs, what pharmaceutical companies are ethically required to do to increase access to these medicines in the developing world will have to be reanalyzed from a more systemic perspective. (shrink)

The claim that indigenous communities are entitled to have intellectual property rights (IPRs) to both their plant varieties and their botanical knowledge has been put forward by writers who wish to protect the plant genetic resources of indigenous communities from uncompensated use by biotechnological transnational corporations. We argue that while it is necessary for indigenous communities to have suchrights, the entitlement argument is an unsatisfactory justification for them. A more convincing foundation for indigenous community IPRs is the autonomy theory developed (...) by Will Kymlicka. (shrink)

This article contributes to the analysis of refusal to license cases as abuse of a dominant position pursuant Article 82 EC from an economic perspective. In the Microsoft case, the European Commission introduced an "Incentives Balance Test" to assess whether the refusal to give access to interface information can be justified by arguing that this information is protected by Intellectual Property Rights (IPRs): The Commission argued that if the overall innovative effects evoked by a compulsory license are significantly higher than (...) without this access, the IPR owner is obliged to license. This should be assessed through balancing the different incentives to innovate between the dominant firm and its competitors. In the paper we pursue two objectives: Firstly, we analyze to what extent the decision of the Court of First Instance, which confirmed the decision of the Commission, helps to clarify the criteria in refusal to license cases; in fact, it is disappointing in this regard. Secondly, we demonstrate that the basic idea of the Incentives Balance Test can be interpreted as a test whether the specific IPRs of the dominant firm can be defended from the perspective of the economics of IPRs. This implies that Article 82 allows competition law to correct economically not optimal IPRs through a specific economic analysis. This is followed by a broad overview on theoretical and empirical insights from economics of IPRs, innovation economics and competition and network economics that can help to develop a more general and sophisticated Innovation Effects Test that can be applied in Article 82 refusal to license cases. (shrink)

Abstract: This paper considers the arguments that could support the proposition that intellectual property rights as applied to software have a moral basis. Undeniably, ownership rights were first applied to chattels and land and so we begin by considering the moral basis of these rights. We then consider if these arguments make moral sense when they are extended to intellectual phenomenon. We identified two principal moral defenses: one based on utilitarian concerns relating to human welfare, the other appeals to issues (...) of individual autonomy and private control. We conclude that intellectual property rights could not be defended from a moral perspective that emphasizes autonomy and individual control because copyright and patent restrict fundamental freedoms to transfer and redistribute one’s property. We also find it difficult to defend intellectual property in software from a utilitarian perspective because of the current structure of the market. We mention two characteristics of the software market that make it distinct and promote monopolistic conditions and excessive profit taking: the facility of replication, and the need for compatibility in operating systems. We conclude that there are good reasons to reverse the current market’s structure. We suggest three possible remedies. The government could rigorously enforce antitrust legislation, impose greater monitoring and price controls, or obviate the commercial aspect altogether by denying the application of intellectual property rights to software. (shrink)

This paper puts forward an argument for stakeholder rights. It begins by exploring two major answers to the question, 'in whose interests should the commercial company function?'. One claims parity for other stakeholders alongside the shareholder on the basis of a theory of property rights, and another on a theory of citizenship. Each of these answers, it is argued, fail to convince. The way forward is to recast the initial question, not asking in whose interest the company should function, but (...) which type of interest, potentially located in any sort of person, might the company serve. That interest is identified and distinguished from others that people affected by corporations might have. These distinctions then provide the basis for an argument in favour of enfranchising two sorts of individual: sovereign stakeholders, in charge of monitoring the formulation and revision of company objectives; and secondary stakeholders, who along with those in the first category monitor the means used to achieve those objectives.The paper concludes that these distinctions should lead us to reconsider other elements in the corporate governance debate, such as the nature of a director's fiduciary duty; and the difference between democracy in corporations and democracy in the wider society. (shrink)

Western attempts to obtain Chinese compliance with intellectual property rights have a long history of failure. Most discussions of the problem focus on either legal comparisons or explanations arising from levels of economic development (based primarily on the example of U.S. disregard for such rights during the 18th and 19th centuries). After decades of heated negotiation, intellectual property rights is still one of the major issues of misunderstanding between the West and the various Chinese political entities. This paper examines the (...) sources of this problem from the standpoint of traditional Chinese social and political philosophy (specifically Neo-Confucianism). It points out that the basic assumptions about the nature of intellectual property, which arose during the 17th and 18th centuries in Europe, are fundamentally at odds with the traditional Chinese view of the role of intellectuals in society. It suggests that policies which do not take these differences into account, but which attempt to transfer Western legal concepts without the underlying social constructs are responsible for much of the lack of success in the area of intellectual property rights. (shrink)

Libertarians often assume that a free society will be one in which all (or nearly all) property is private. I have previously expressed my dissent from this consensus, arguing that libertarian principles instead support a substantial role for public property. (" In Defense of Public Space ," Formulations, Vol. III, No. 3 (Spring 1996).) In this article I develop this heretical position further.

Corporate property rights present an interesting challenge to the liberal conception of property rights, for it is unclear that the self-respect of individuals is promoted by the existence of a system of property rights for corporations. I argue that it is difficult even to identify who the individuals are who are the owners of large corporations, and why these individuals should be given the same claims, protections and immunities as other property rights holders since the liabilities of corporate property rights (...) holders are not the same as of those, for instance, who own their own homes. In this paper I first try to understand who it is who owns the large corporation. Secondly, I show that the limited liability of these corporate property owners makes the justification of corporate property rights quite difficult, from the classical liberal perspective. I end with a few brief remarks on changes in legal policy which would be consistent with my arguments on the nature and justification of corporate property rights. (shrink)

This paper argues that intellectual property rights are incompatible with Rawls’s principles of justice. This conclusion is based upon an analysis of the social stratification that emerges as a result of the patent mechanism which defines a marginalized group and ensure that its members remain alienated from the rights, benefits, and freedoms afforded by the patent product. This stratification is further complicated, so I argue, by the copyright mechanism that restricts and redistributes those rights already distributed by means of the (...) patent mechanism. I argue that the positions of privilege established through both the patent and the copyright mechanisms are positions that do not “allow the most extensive liberty compatible with a like liberty for all.” They do not “benefit the least advantaged.” Nor are they “open to all under conditions of fair equality of opportunity.” In making this argument I critically assess the utilitarian defense of intellectual property rights and find it insufficient to respond to the injustices manifest in our current arrangement for the protection of intellectual property rights. (shrink)

Contributors to this volume approach Rawls's idea from a number of perspectives: its philosophical foundations, institutional implications, and possible connections to the future of left-of-center politics.

Research in recent history has neglected to address the moral foundations of particular kinds of public policy such as the protection of intellectual property rights (IPRs). On the one hand, nation-states have enforced a tightening of the IPR system. On the other, only recently have national government and international institutions recognised that the moral justification for stronger IPRs protection is far from being plausible and cannot be taken for granted. In this article, IPRs are examined as individual rights founded upon (...) natural law, personality development, just reward and social utility. It is argued that these foundations cannot be philosophically sustained. IPRs constitute morally indefensible political developments which aim to reproduce the capitalist division of knowledge and labour at national, international and global levels. The need for such a critical approach to the moral foundations of IPRs has increased in importance as a consequence of their role in justifying corporate power, globalisation policies and harmonisation of such. (shrink)

In this paper, we critique the emergent international normative framework of growth – the knowledge economy. We point out that the standardized character of knowledge economy's flagship – intellectual property rights (IPRs) – has an adverse impact on women in emerging economies, such as India. Conversely, this impact on women, a significant consumer segment, has a feedback effect in terms of market growth. Conceptually, we analyze the consequences of knowledge economy and standardized IPR through a feminist lens. We extend the (...) analyses by pointing to various contradictions surrounding growth norms; for example, there are inherent contradictions between established "formal" legalistic interpretation ofIPR, "soft law" norms of corporate social responsibility, a fluid situation of moral claims of human rights, and different institutional capabilities at the international and domestic level. Consequently, we are able to demonstrate how standard IPR laws fail to deliver equity for all. We argue our case through exploring the growth aspects of the agricultural sector in India and the adverse impact of standard biopatenting on women farmers' rights (as producers and consumers) and preservation of environment. We suggest that desired gendered equity is better achieved when there is a constellation of actors – private–sector business, the state, and civil-society leaders – working together to ensure a balanced development through tailoring of IPR to local needs. (shrink)

It is impossible at thc prcscnt time to present a systematic, coherent description of the ancient Irish law of property. The reason is that a considerable portion of the sources have not been published in modern scientific textual editions and translations. The..

Lockean natural rights theories have long been associated with laissez-faire policies on the part of the government, in large measure because of the sanctity they accord to individual rights, especially private property rights. However, I will argue that if one attempts to apply such theories to moral questions about pollution, they present a different face, one set so firmly against laissez-faire -- or laissez-polluer -- as to countenance serious restriction of what Lockeans have traditionally taken to be the proper sphere (...) of individual freedom. (shrink)

This article argues that considerations about the role and predictability of intellectual innovation make the protection of intellectual property morally obligatory even when it greatly reduces short-term welfare. Since the provision of good new ideas is the only productive input not subject to decreasing marginal productivity, welfarist considerations require that no impediment to its maximal provision be erected and the potentially substantial welfare losses imposed by a patent system be mitigated by taxation of other sources of wealth and income. Key (...) Words: patent system • welfarism • decreasing marginal productivity. (shrink)

The purpose of this paper is to argue that the tactic of granting a fetus the legal status of a person will not, contrary to the expectations of opponents of abortion, provide grounds for a general prohibition on abortions. I begin by examining two arguments, one moral (J. J. Thomson's A Defense of Abortion) and the other legal (D. Regan's Rewriting Roe v. Wade), which grant the assumption that a fetus is a person and yet argue to the conclusion that (...) abortion is permissible. However, both Thomson and Regan rely on the so-called bad samaritan principle. This principle states that a person has a right to refuse to give aid. Their reliance on this principle creates problems, both in the moral and the legal contexts, since the bad samaritan principle is intended to apply to passive refusals to aid; abortion, however, does not look like any such passive denial of aid, and so it does not seem like the sort of action covered by the bad samaritan principle. In defense of the positions outlined by Thomson and Regan, I argue that the apparent asymmetry between abortion and the usual type of case covered by the bad samaritan principle is only apparent and not a genuine problem for their analyses. I conclude with a defense of the morality of the bad samaritan principle. (shrink)

I try in this essay to accomplish two things. First I offer some first thoughts toward a clarification of the ethical foundations of private property rights that avoids pitfalls common to more strictly Lockean theories, and is thus better prepared to address arguments posed by critics of standard private property arrangements. Second, I'll address one critical argument that has become pretty common over the years. While versions of the argument can be traced back at least to Pierre Joseph Proudhon, I'll (...) focus on a formulation given it by Jeremy Waldron. The basic idea is that the only sound arguments for private property rights lead to the conclusion that society has an obligation to insure that every citizen possess private property. In Waldron's formulation, what is justifiable is a general, rather than a special, right to private property. I shall try to suggest that this conclusion is unwarranted. (shrink)

How do we weigh the claims of current and future people when current exercise of rights to property conflict with sustainability? Are property rights over theseresources more limited due to the claims of posterity? Lockean property rights allow no right to degrade resources when doing so threatens the basic needs offuture generations. A stewardship conception of property rights can be developed, providing a justification for sustainable management legislation even whensuch law conflicts with the rights an owner would have, were the (...) resource under more full-blown ownership. A protection indicator can be developed that is sensitive to a range of empirical factors such as scarcity, renewability, importance of the resource, and seriousness and reversibility of potential harm. The stewardship conception of rights over environmental resources can be applied in policy settings, for example, in decisions over emissions limits and land-use patterns. Such harnessing of Lockean intuitions to argue for environmental protection is in sharp contrast to Locke’s usual employment by those keen to show that such protection violates owners’ rights. (shrink)

Eighty percent of (commercial) genetically engineered seeds (GES) are designed only to resist herbicides. Letting farmers use more chemicals, they cut labor costs. But developing nations say GES cause food shortages, unemployment, resistant weeds, and extinction of native cultivars when “volunteers” drift nearby. While GES patents are reasonable, this paper argues many patent policies are not. The paper surveys GE technology, outlines John Locke’s classic account of property rights, and argues that current patent policies must be revised to take account (...) of Lockean ethical constraints. After answering a key objection, it provides concrete suggestions for implementing its ethical conclusions. (shrink)

The argument in this essay is twofold. (1) Procedural justice requires,in particular cases, that we restrict property rights in natural resources, e.g., California agricultural land or Appalachian coal land. (2) Conditions imposed by Locke's political theory and by dense population require,in general, that we restrict property rights in finite or non-renewable natural resources such as land. If these arguments are correct, then we have a moral imperative to use land-use controls (such as taxation, planning, zoning, and acreage limitations) to restructure (...) land ownership and land use in a far more radical way than has ever been accomplished in the past. (shrink)

The primary theme of this paper is the normative case against ownership of one's genetic information along with the source of that information (usually human tissues samples). The argument presented here against such upstream property rights is based primarily on utilitarian grounds. This issue has new salience thanks to the Human Genome Project and bio-prospecting initiatives based on the aggregation of genetic information, such as the one being managed by deCODE Genetics in Iceland. The rationale for ownership is twofold: ownership (...) will protect the basic human rights of privacy and autonomy and it will enable the data subjects to share in the tangible benefits of the genetic research. Proponents of this viewpoint often cite the principle of genetic exceptionalism, which asserts that genetic information needs a higher level of protection than other kinds of personal information such as financial data. We argue, however, that the recognition of such ownership rights would lead to inefficiency along with the disutility of genetic discoveries. Biomedical research will be hampered if property rights in genes and genetic material are too extensive. We contend that other mechanisms such as informed consent and strict confidentiality rules can accomplish the same result as a property right without the liabilities of an exclusive entitlement. (shrink)

The claim that indigenous communities are entitled to have intellectual property rights (IPRs) to both their plant varieties and their botanical knowledge has been put forward by writers who wish to protect the plant genetic resources of indigenous communities from uncompensated use by biotechnological transnational corporations. We argue that while it is necessary for indigenous communities to have suchrights, the entitlement argument is an unsatisfactory justification for them. A more convincing foundation for indigenous community IPRs is the autonomy theory developed (...) by Will Kymlicka. (shrink)

This paper examines the question whether, and to what extent, John Locke’s classic theory of property can be applied to the current debate involving intellectual property rights (IPRs) and the information commons. Organized into four main sections, Section 1 includes a brief exposition of Locke’s arguments for the just appropriation of physical objects and tangible property. In Section 2, I consider some challenges involved in extending Locke’s labor theory of property to the debate about IPRs and digital information. In Section (...) 3, it is argued that even if the labor analogy breaks down, we should not necessarily infer that Locke’s theory has no relevance for the contemporary debate involving IPRs and the information commons. Alternatively, I argue that much of what Locke has to say about the kinds of considerations that ought to be accorded to the physical commons when appropriating objects from it – especially his proviso requiring that “enough and as good” be left for others – can also be applied to appropriations involving the information commons. Based on my reading of Locke’s proviso, I further argue that Locke would presume in favor of the information commons when competing interests (involving the rights of individual appropriators and the preservation of the commons) are at stake. In this sense, I believe that Locke offers us an adjudicative principle for evaluating the claims advanced by rival interests in the contemporary debate about IPRs and the information commons. In Section 4, I apply Locke’s proviso in my analysis of two recent copyright laws: the Copyright Term Extension Act (CTEA), and the Digital Millennium Copyright Act (DMCA). I then argue that both laws violate the spirit of Locke’s proviso because they unfairly restrict the access that ordinary individuals have previously had to resources that comprise the information commons. Noting that Locke would not altogether reject copyright protection for IPRs, I conclude that Locke’s classic property theory provides a useful mechanism for adjudicating between claims about how best to ensure that individuals will be able to continue to access information in digitized form, while at the same time also allowing for that information to enjoy some form of legal protection. (shrink)

Unauthorized appropriation of geneticresources has been described by the term``biopiracy.'' Technological breakthroughsincluding biotechnological applications canincrease considerably the instrumental value ofbiodiversity as new products or products withnew properties can be made. Nevertheless, itappears that, in most cases, the properties inquestion were already known to the indigenouspeople and used for centuries. The analysisdiscusses both from an economic and an ethicalperspective whether it is just that traditionalknowledge is rewarded. As the conflictintensifies over questions of ownership andcontrol of biological materials, IntellectualProperty Rights are at (...) the center ofcontroversies. The current global systemgoverning biotechnology has largely been shapedby Western expectations and valuations andconsequently has drawn severe criticism. Thecritics doubt both the stability andsustainability of the current patent system andargue for restructuring through benefit-sharingsystems in order to address some of theexisting inequalities. With the help of a casestudy (US patent no. 5,751 on ayahuasca) thetheoretical notion of biopiracy is applied toreal problems. (shrink)

forthcoming in Philosophy & Public Affairs [2008].

This paper provides further evidence to the argument that Smith' theory of justice did not follow the natural justice school and that subsequently the ethical position on acquiring private property is not independent of the effects which such acquisition may have on the property-less individuals. I will show that the justification for private ownership is based on “reasonable expectations” which owners of assets have with regard to the fruits of the asset. The expectation to subsist through the use of one's (...) natural assets is equally reasonable. This is not to say that Smith believed that society should equally distribute income. But it does mean that the acquisition of private property must not interfere with the rights of individuals to subsist. Consequently, distribution is clearly an important part of Smith's conception of justice. Footnotes1 I am in debt to P. Bridel, A. Cot, J. Young and the anonymous referees of this Journal for helpful comments. (shrink)

The common discourse on intellectual property rights rests mainly on utilitarian ground, with implications on the question of justice as well as moral significance. It runs like this: Intellectual property rights are to reward the originators for his/her intellectual labour mainly in monetary terms, thereby providing incentives for originators to engage in future innovative labouring. Without such incentives, few, if not none, will engage in creative activities and the whole human community will, thereby, suffer because of reduced inventions. However, such (...) utilitarian argument on piracy as de-motivation may not be necessarily justified. In fact, intellectual property arrangement is one among different institutions concerning how the society may handle new ideas and creative works. In reality, private ownership over one's intellectual product is merely a modern western concept that is being ' advertised' as being normative, which, by itself, is highly debatable. Alarming still, such normative argument assumes both justness and moral dimensions. This article will analyse whether such argument is philosophically sound. (shrink)

The institutional theory of property is that view that property rights are entirely and essentially conventional and are the creatures of states and coercively backed legal systems. In this paper, I argue that, although states and legal systems have a valuable role in defining property rights, the institutional story is not the whole story. Rather, the property rights hat we have reason to recognize as part of justice are partly conventional in character and partly rooted in universal human interests and (...) dispositions. (shrink)