Could there be a right to own intellectual property?

Law and Philosophy 28 (4):393 - 427 (2009)

James Wilson
University College London
Intellectual property typically involves claims of ownership of types, rather than particulars. In this article I argue that this difference in ontology makes an important moral difference. In particular I argue that there cannot be an intrinsic moral right to own intellectual property. I begin by establishing a necessary condition for the justification of intrinsic moral rights claims, which I call the Rights Justification Principle. Briefly, this holds that if we want to claim that there is an intrinsic moral right to φ, we must be able to show that (a) violating this right would typically result in either a wrongful harm or other significant wrong to the holder of the right, and (b) the wrongful harm or other wrong in question is independent of the existence of the intrinsic right we are trying to justify. I then argue that merely creating a new instance of a type is not the kind of action which can wrongfully harm the creator of that type. Insofar as there do seem to be wrongs involved in copying a published poem or computer program, these wrongs presuppose the existence of an intrinsic right to own intellectual property, and so cannot be used to justify it. I conclude that there cannot be an intrinsic right to own intellectual property.
Keywords Philosophy   Political Science   Law Theory/Law Philosophy   Philosophy of Law
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DOI 10.1007/s10982-008-9041-y
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References found in this work BETA

Harm to Others.Martin P. Golding - 1987 - Philosophical Review 96 (2):295-298.
Rights and Agency.Amartya Sen - 1982 - Philosophy and Public Affairs 11 (1):3-39.

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Citations of this work BETA

Labor as the Basis for Intellectual Property Rights.Bryan Cwik - 2014 - Ethical Theory and Moral Practice 17 (4):681-695.
Property Rights of Personal Data and the Financing of Pensions.Francis Cheneval - 2018 - Critical Review of International Social and Political Philosophy:1-23.
Agrobiodiversity Under Different Property Regimes.Cristian Timmermann & Zoë Robaey - 2016 - Journal of Agricultural and Environmental Ethics 29 (2):285-303.
Freedom of Information and Research Data.James Wilson - 2011 - Research Ethics 7 (3):107-111.

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