Abstract
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.
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Notes
For a summary of the argument see below under section “Antithetical considerations”. The utilitarian argument is also often the seed of defenses of IPRs premised upon the apparent evolution of the economy away from a material goods base and towards an information base. Arguments of this sort suggest that the so-called “information age” is one in which IPRs are even more necessary in order to protect the rights of the information producers. Such arguments, however, take a far too narrow view of the economy and disregards the fundamental fact that the provision of material goods for human survival and comfort will always constitute a substantial core of the economy. See also Moore (2003).
My research revealed only one genuine attempt to do so in Neumann (2009).
This, again, is not a statement that I intend to defend here. I am confident that those already familiar with Rawls’s work will recognize that the undefended claim is at least reasonable enough to serve as the starting point of the present discussion. For those who are not already familiar with Rawls’s work, I trust that the reasonableness of this claim will emerge as we proceed.
It is my contention that these sorts of issues are irrelevant to the current discussion not because the investigations they stimulate aren’t enlightening but because the conclusions derived from them—those that tend to defend or reject IPRs based upon whether or not they can be substantiated in the paradigm of properties—tend to be unsatisfying and difficult to appreciate outside of academic contexts.
This is terminology that I will continue to use throughout the paper, e.g., I will refer to “the copyright mechanism” or “the patent mechanism” to refer to the set of laws and the legal infrastructure by means of which the given rights are protected and restrictions enforced.
This is the current standard under TRIPS but terms differ from country to country (see below).
It is generally held, however, that the definitive statement of his views is found in the revised edition published in 1999 and so I have chosen to quote from the later edition of the work.
Rawls is particularly and explicitly critical of utilitarianism.
That Rawls seeks “procedural justice” (as opposed to say some sort of universal justice similar to that sought by Plato) is an essential aspect of Rawls’s theory of justice. For this reason it is not an aspect of Rawls’s theory that can be overlooked in the present discussion. That said, I hope to proceed with my discussion of IPRs and Rawls’s principles of justice without belaboring the notion of procedural justice.
Again, this is consistent with Rawls’s desire to achieve procedural justice (see above and note 9).
Rawls likens this to Kant’s categorical imperative which stipulates that a precept is moral if one can will it to be a univeralizable maxim. In other words, when faced with a moral dilemma the proper course of action is that one that the agent believes would be right of any other moral agent to choose if faced with a similar moral dilemma.
The important exception to this claim is the performance of a work of art. A performance does, in a sense, involve the realization of the complex conceptual entity in matter and, in such cases, the performance is the primary means of distributing the benefits, rights, and freedoms of the creation to society at large. We would not, however, want to say that these benefits are being distributed via traditional property. Rather, the performance might be viewed as an elaborate communication of the complex conceptual entity and that the benefits are realized in the reception of the communication. That said, any recording of the performance can properly be viewed as property in the traditional sense and it is property that manifest the possibility to realize the benefits, rights and freedoms associated with the complex conceptual entity in question.
In fact we can enumerate any number of thoughtful reasons why lying is morally unacceptable and therefore unjust, however, I have no intention to defend lying and so, for present purposes, I will be satisfied with the unqualified or defended claim that lying is unjust and that no IPR need be established in order to validate this precept.
“Industrial designs” refer to innovations and modifications made to a products that effect (and presumably improve) the functionality, usability, and the efficiency of their manufacture. “Patents” are applied to inventions generally and inventions encapsulate invented objects themselves as well as processes that are invented for the purpose of the production of manufacture of particular products. In TRIPS the phrase “layout designs” is used to refer to the design of electronic circuitry.
Rawls very clearly believed that property and a free market economy was one of the many efficient arrangements for the distribution of rights. Rawls states, for example, “For example, in a society allowing private ownership of the means of production, property and wealth must be kept widely distributed and government monies provided on a regular basis to encourage free public discussion” (1999).
I would like to thank the reviewer who suggested this argument. It not only reinforces the notion that IPRs cause unjust social stratification but, as we shall see, it represents an additional refutation of the traditional utilitarian defense of IPRs.
Rawls’s refers to this scenario as the natural lottery. Although he recognizes that the natural lottery is, in some respects, inescapable when it comes to the allocation of ‘native assets’—which, in part, includes the natural resources of the region into which one is born—he is clear that the principles of justice ought to be deployed in a manner that seeks to offset this factor.
By using the term “private” I mean to emphasize the non-governmental nature of the office wielding the right to distribute the rights, benefits, and freedoms manifest in the given invention.
These various rights are, in fact, stipulated and defined in the Berne Convention (1886) (amended most recently in 2009), a creation of the World Intellectual Property Organization (WIPO). Article 9 of TRIPS makes explicit reference to the Berne Convention.
See our previous discussion under “Additional stipulations”.
Such a consumer might inefficiently violate the copyright—e.g., she might write out Stephen King’s latest novel by hand and sell that copy to a friend—however, that seems unlikely.
Of course, the circumstances of any individual marginalized person might change over the course of those 20 years such that she gains access to the benefit, but there is an equally likely chance that her circumstances will change for the worse also.
Specifically, Zwahlen and Egger are citing studies conducted in the Central African Republic, India, Brazil, South Africa, Uganda, and Thailand.
To be clear, he first-to-market strategy attempts to ensure long-term profit by securing a significant portion of a new market by means of being the first firm to offer a new product or service. This stategy is already starting to gain traction in a number of industries. This is especially the case in the technology industry and among those firms that exemplify the so-called “information age”. See note 1 above.
This, of course, responds to the primary justification for IPRs according to the utilitarian argument.
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Murphy, D.J. Are intellectual property rights compatible with Rawlsian principles of justice?. Ethics Inf Technol 14, 109–121 (2012). https://doi.org/10.1007/s10676-012-9288-8
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DOI: https://doi.org/10.1007/s10676-012-9288-8