3. Theoretical Accounts of European Intellectual Property

Abstract

This chapter offers a full and critical account of the arguments for and against the existence of IP systems in general, and of European IP systems in particular. It begins by considering two general theories in support of the recognition of IP rights as natural rights: the first casting IP as supporting the personal development and autonomy of individual creators (the argument from personhood), and the second casting IP as securing for creators such rights as they deserve by virtue of their acts of intellectual creation (the argument from desert). From natural law accounts of the existence of IP the chapter goes on to examine three other theories grounded in considerations of justice, utility, and pluralism respectively. According to the first, IP is defensible as a means of preventing people either from being enriched unjustly or from harming others by unfairly ‘reaping where they have not sown’. According to the second, IP rights are privileges conferred by the state on specific individuals in the pursuit of certain instrumentalist ends, such as encouraging socially desirable behaviour on the part of their beneficiaries or discouraging socially undesirable behaviour on the part of those whose freedoms they restrict. And according to the third, IP is a regulatory mechanism by which different understandings and traditions of protecting creative and informational subject matter are reconciled in support of legal and social pluralism. The chapter concludes with a discussion of the implications of the theoretical accounts for the duration of copyright and related rights protection and the patentability of biotechnology.