Ethics of property, property rights and intellectual property rights

The ethics of property, property rights and intellectual property rights are assiduously contested throughout the history of the concept. Discourse on property gained its momentum by the turn of 17th century within the theological discussion of that time. For instance, Locke justified property right from theological point of view that God has given Land 'and all inferior creatures' 'to men ^[134] in common'.^{[135][136][137][138]} The idea of property is intrigued with the notion of self as individual. Property ownership is said to enhance individual liberty by extending the line of non-interference by the state or others around the person.^[139] Seen from this perspective, property right is absolute and property has special and distinctive character that precedes its legal protection. However, The isolated, self-contained and often competitive and materialistic individual, responsible essentially for his/her own existence is a cultural construct moulded by the unique historical matrix certain cultures went under rather than the truth about human condition. At this era, immersed deep into the cultural construct of atomous ^[140] individuals, the idea of property right was conceptualized as "sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe".^[141] It is during the same time, as the number of black slaves grew, American legislatures enacted comprehensive slave codes that defined the legal status of slaves as a form of property ^[142] Moreover, it is the time in which the natives of America were dispossessed of millions of acres of land.^[143] Ironically, the native Indians were dispossessed of their property of about 200,000 square miles (520,000 km²) of land under the leadership of Thomas Jefferson, who is a champion of property rights.^{[144][145][146]}

The notion of property has its etymological root in 'proprius' ^[147] which refers to 'nature', 'quality', 'one's own', 'special characteristic', 'proper', 'intrinsic', 'inherent', 'regular', 'normal', 'genuine', 'thorough, complete, perfect' etc. The word property is value loaded and associated with the personal qualities of propriety and respectability, also implies questions relating to ownership. The 'proper' person is the one who owns and is true to herself or himself, and is thus genuine, perfect, pure.^[148] Combined with theological justification, property is taken to be essentially natural ordained by God.^[149] Property, which later gained meaning as ownership and appeared natural to Locke, Jefferson and to many of the 18th and 19th century intellectuals^[150] as land, labour or idea^[151] and property right over slaves had the same theological and essentialized justification ^{[152][153][154][155][156][157]} It was even held that the property in slaves was a sacred right ^[158][159] till recently as aptly pointed out by a historian, "slavery was more clearly and explicitly established under the Constitution as it had been under the Articles"^[160] Accordingly, American Supreme Court Chief Justice Roger B. Taney in his 1857 judgment stated, "The right of property in a slave is distinctly and expressly affirmed in the Constitution". Similarly, neoliberal ideologists too often hold that private property right is "sacred" and thus non-negotiable natural right.^[161][162] Those who contest the ideology argue that "property is no different from other legal categories in that it is simply a consequence of the significance attached by law to the relationships between legal persons."^[163] The sacred natural right view is contested with the argument that property rights are mediated by historically situated negotiable.^[164] Scholars point out that property right is more of a politically negotiated^[165][166] and legally regulated right than a natural or sacred right endowed to individuals and firms. Jeremy Bentam succinctly put this, "property and law are born together and die together" ^[167][168] "'Property it is observed "is only an effect, a construction, of relationships between people, meaning that its objective character is contestable. Persons and things, are 'constituted' or 'fabricated' by legal and other normative techniques.".^[169][170] In fact, private property cannot exist without regulation.^[171] After centuries of battles of scholarship, common law theory generally tend to favour the view that "property is not essentially a 'right to a thing', but rather a separable bundle of rights subsisting between persons which may vary according to the context and the object which is at stake"(Davies, p. 20).

Property right, referred to as 'bundle of rights'^[172] implying a group of rights such as occupancy, use and enjoyment, and the right to sell, devise, give, or lease all or part of these rights,^{[173][174][175][176]} often obscure the responsibility associated with such a right: custodians of property have obligations as well as rights.^[177][178] Property claims, it is observed, is fragile and cannot exist without trust of others.^[179][180] Property, it is observed, 'is an illusion' –'normative phantasm,' however not a meaningless figment of the imagination, but rather an object of desire through which we are 'seduced into believing that we have found an objective reality which embodies our intuitions and needs' ^{[181][182][183]}

In the neoliberal literature, property is seen in the public/private dichotomy and private property rights is presented as a counterweight to state power.^[184] The private/public dichotomy of the neoliberal ideologists too is contested on the ground that "any space may be subject to plural meanings or appropriations which do not necessarily come into conflict" ^[185]

Often, what is claimed as property right later could originally be a forced appropriation rather than negotiation passed on to the heirs of the appropriators.^[186][187] However, the rights paradigm tends to stabilize the current distribution of property holdings by securing extant property holdings on the assumption that they are lawfully acquired, socially important and politically and morally legitimate".^[188]

Property does not exist in isolation, and so property rights too.^[189] Property rights describe relations among people and not just relations between people and things^{[190][191][192][193][194]} for the fundamental truth about human condition is its plurality ^[195] Some scholars argue that the idea that owners have no legal obligations to others wrongly supposes that property rights hardly ever conflict with other legally protected interests.^[196] Further, it is argued, rights impose duties on others and that liberties impose vulnerabilities on those affected by the exercise of those liberties. Ethics of property rights begins with recognizing the vacuous nature of the notion of property.^[197]

Intellectual property right is a special kind of monopoly property right. The phrase 'intellectual property rights' [IPR] indicate treating ideas, thoughts, codes and information as monopoly. Michele Boldrin and David K. Levine argue that "[t]he government does not ordinarily enforce monopolies for producers of other goods. This is because it is widely recognized that monopoly creates many social costs. Intellectual monopoly is no different in this respect. The question we address is whether it also creates social benefits commensurate with these social costs."^[198] The standards of Intellectual Property Rights are enforced through Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) globally.^[199]

Neoliberal ideologists justify the monopoly intellectual property right on the ground that such a monopoly is an 'incentive to invent and develop goods'.^[200] The neoliberal claim of 'innovative monopoly' is seen as oxymoron by some scholars.^[201][202] Further they comment, 'intellectual property' "is not like ordinary property at all, but constitutes a government grant of a costly and dangerous private monopoly over ideas. We show through theory and example that intellectual monopoly is not necessary for innovation and as a practical matter is damaging to growth, prosperity, and liberty" .^[200] In defence of intellectual property right it is said that life saving drugs were invented on the hope of profits drawn out of monopoly right over the idea for a stipulated period of time.^[203] However, the same case is quoted by those who challenge the patent monopoly. The stiff opposition and court cases from 39 multinational pharmaceutical industry giants against the Medicines and Related Substances Control Amendment Act, 1997 of the Government of South Africa which intended to provide affordable medicine support to individuals with AIDS is often cited as the instance of bad ethics of patent monopoly.^{[204][205][206]}

The ethics of monopoly intellectual property rights, is questioned from various points of views. A basic contention against IPRs in the context of natural rights and moral rationales is that inventions are mostly a social creation of collective, cumulative, path dependent,^[207] and interrelated work to which we all contribute, and, therefore, no one person or firm should be able to claim the property. It is argued that innovations happen in a matrix of historically emergent social arrangement letting individuals in the matrix hitting with the new idea and hence rewarding the lucky individuals with monopoly rights is contested. Further, it is not the individual hit with the new idea, but mostly the corporate firm appropriated the idea is awarded with monopoly rights ^[208] Roderick Long, a libertarian philosopher, observes, "Ethically, property rights of any kind have to be justified as extensions of the right of individuals to control their own lives. Thus any alleged property rights that conflict with this moral basis—like the "right" to own slaves—are invalidated. In my judgment, intellectual property rights also fail to pass this test. To enforce copyright laws and the like is to prevent people from making peaceful use of the information they possess. If you have acquired the information legitimately (say, by buying a book), then on what grounds can you be prevented from using it, reproducing it, trading it? Is this not a violation of the freedom of speech and press? It may be objected that the person who originated the information deserves ownership rights over it. But information is not a concrete thing an individual can control; it is a universal, existing in other people's minds and other people's property, and over these the originator has no legitimate sovereignty. You cannot own information without owning other people".^[209] IPR is primarily justified with the a priory notion of 'innovative monopoly' according to which intellectual monopoly believed to be increasing creativity. Enacting laws based on a priori considerations is unethical seen from perspective of pragmatic ethics.^[210] Further, monopoly is held as anti-competitive in the current and age old wisdom of political economy and economics.^[211][212]

It is commonly held that knowledge economy unlike the conventional economy of scarcity, is an economy of abundance ^[213] because knowledge economy is sourced on the infinite potential of knowledge and idea rather than on limited resources like land, labour or machinery alone. The basic concept of an economics of abundance should have been egalitarian distribution of goods and services and optimization of production.^[214] It is argued that the IPR regime creates artificial scarcity while abundance is otherwise possible and makes the economy more inegalitarian than before.^{[215][216][217]} Boudewijn Bouckaert, questioning IP Law created artificial scarcity writes, "Natural scarcity is that which follows from the relationship between man and nature. Scarcity is natural when it is possible to conceive of it before any human, institutional, contractual arrangement. Artificial scarcity, on the other hand, is the outcome of such arrangements. Artificial scarcity can hardly serve as a justification for the legal framework that causes that scarcity. Such an argument would be completely circular. On the contrary, artificial scarcity itself needs a justification" ^[218]

The IPR causes concern because intellectual property unlike other forms of material property is unlimited, and unconstrained by limitations of space and time^[219] Further, intellect, which was conventionally considered unalienable from its beholding person, is made legitimately alienable and ownable by others. The others who alienate and own the intellectual property is usually corporate houses with portfolios of intellectual property ^[220] The ethics of a legal system that lets relatively small number of corporate players amassing huge intellectual property portfolios and colonizing the future ^[221] is contested.^[222] Ideas when owned and monopolized it would dispossess the present ^[223] the generations yet to be born.

• Patent infringement, copyright infringement, trademark infringement.
• Misuse of intellectual property laws to stifle competition (patent misuse or copyright misuse), or to opportunistically extract litigation settlements and awards rather than in furtherance of the public policy aims behind the laws (patent troll, submarine patent, copyright troll, trademark troll)
• The notion of intellectual property itself has been criticized on ethical grounds.
• Employee raiding: the practice of attracting key employees away from a competitor to take unfair advantage of the knowledge or skills they may possess.
• The practice of employing all the most talented people in a specific field, regardless of need, to prevent any competitors employing them.
• Bioprospecting and biopiracy.
• Business intelligence and industrial espionage.

Cases: private versus public interests in the Human Genome Project

Date: 2015-12-24; view: 881