Intellectual Property - Philosophical Perspectives

Fifth Amendment of US Constitution

protects private property against takings by the government for public use without just compensation.

What can people own?

Real property and tangible objects

Private Property results…

when labor is applied to nature

What are the philosophical bases for protection of private property?

incentive for discovery,

as an essential part of personhood,

and as a foundation for an ordered economic system.

Two broad philosophical categories

1. Theories that previously justify tangible property applied to intangible resources

2. Theories focus on IP as form of “property” and emphasize behavior IP seeks to curtail (copy and counterfeit)

Tangible property possession is…

Necessarily “exclusive”, right granted to “owner” to exclude others from certain uses of it

Intangibles possession on other hand…

do not have this characteristic of excludability.

When told info, not deprived of info, rather both possess

“nonrivalrous”,

value is not diminished

Principal basis for IP protection in US

utilitarian or economic incentive framework.

John Locke Theory of property

A person acquires rightful property by mixing their labor with common resources, provided they take only what they can use and leave enough and as good for others.

Personhood Perspective

to achieve proper self development—to be a person—an individual needs some control over resources in environment (necessary control take form of property rights)

Two types of property

Personal (Non-fungible) Property
Fungible (Instrumental) Property

Fungible (Instrumental) Property

Object valued only for exchange or utility
Easily replaceable by money or equivalents

Personal (Non-fungible) Property

• Objects closely bound to identity and selfhood.

• Loss causes non-compensable pain (money cannot replace it).

• Examples: wedding rings, heirlooms, family homes, portraits.

Test for Personhood Connection

Can the loss be fully remedied by replacement or money?

Hegel’s Contribution

A person is an abstract will until it acts upon the external world.
Property is the first embodiment of freedom.
Ownership allows individuals to project their will onto the world.

Continuity and Stability

Personhood requires continuity over time.