Intellectual property rights as private rights: Implications of the theory of internally limited rights and incentive theory for reconstructing the normative content of rights in intangible goods

Abstract

The article examines the normative content and justification of intellectual property rights (IPR), focusing on the question of whether the incentive theory provides a sufficient and appropriate basis for the regulation of intangible goods within the framework of the concept of inherently limited rights. The research method is based on theoretical analysis conducted within the framework of Civil Law Policy. The first part of the article compares two approaches to limiting rights, including exceptions and limitations related to intellectual property. The first approach assumes that rights are restricted only in cases of conflict with other rights. In contrast, the second approach, Marmora's concept of inherently limited rights, posits that rights are subject to both external and internal limitations through prior analysis of costs and benefits (ex ante). Adopting the second approach leads to the conclusion that intellectual property rights should be treated as inherently limited by a system of exceptions and limitations. This perspective supports the principle of the public domain, which holds that exclusive rights are exceptions to the general rule of the widespread availability of intangible goods and must be designed and applied in accordance with the principle of proportionality. The second part of the article critically evaluates the incentive theory as a tool for justification and conducting ex-ante analysis. This theory is inadequate as a foundation for regulating intangible goods. Firstly, it erroneously assumes that exclusive rights are a causally necessary condition for the creation of works and technological progress. Furthermore, it overlooks the importance of non-market transactions and the role of the state in the creation of intangible goods, relying instead on the premise that the market is the primary or sole mechanism for social organization. The incentive theory also disregards alternative means of appropriating benefits from intangible goods within market transactions and fails to consider the micro- and macroeconomic inefficiencies resulting from granting exclusive rights. From this perspective, the article serves as a critique of the current system of regulating intangible goods through exclusive rights justified by the incentive theory. At the same time, it advocates for the development of a more comprehensive and balanced regulatory model that considers both the interests of creators and societal needs. Particularly promising are regulatory models based on non-exclusive rights, which, while ensuring remuneration for creators, simultaneously provide broad access to intangible goods for society.