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... It should be noted that the Lockean labour theory is not absolute because it comes with two provisos (limitations). These provisos are essential due to the continuous encroachment of technology over intangible matters (Dutfield & Suthersanen, 2008;Zemer, 2006): ...
... Besides, under Locke's labour theory, it seems that almost everyone (such as individuals, corporations, performers) can be given IPRs, and indeed, many industries would fervently support this theory as it would work to their advantage (Dutfield & Suthersanen, 2008;Zemer, 2006). This premise is also questionable. ...
... In this present discourse, there is no scarcity in infinite resources such as intellectual property, which can be consumed and utilised without the supply being exhausted. As such, it is argued that the Lockean theory is relevant to the subject matter of 'finite capacity' but not in instances of 'infinite resources' such as intellectual property (Dutfield & Suthersanen, 2008;Zemer, 2006). Hence, this paper observes that it is easy to analyse and conceptualise subject matters such as land and water as there are potentially usable by anyone and everyone. ...
At its core, Locke’s main argument is centralised in the role of labour, while Hegel’s principal idea lies in one’s will, self-actualisation as well as personal expression. As both thinkers posit strong arguments in substantiating their views, discussions surrounding this topic may influence one to favour a particular theory over the other. This paper makes a modest attempt to discuss the justifications of intellectual property rights by focusing on two well-known philosophers, John Locke and G.W.F Hegel. The research design is exploratory as this paper aspires to explore the basis for the grant of intellectual property rights from the lenses of both theories. Therefore, the research methodology is purely doctrinal and theoretical. The research approach is mainly based on library research, focusing on a reading and analysis of Locke and Hegel’s published works, as well as other materials such as journal articles, commentaries, and textbooks. This article contributes to the existing body of knowledge by highlighting that neither Locke nor Hegel could provide one-fit-for-all justifications of intellectual property rights. Nevertheless, it is worth stating that both philosophers do contribute thoughtful insights that reflect important values worthy of considerations and should never be undermined when framing policies and laws on intellectual property rights.
... Para ello, señala que el soporte no sólo se encuentra en la teoría de la propiedad escrita en el "Ensayo sobre el Gobierno Civil", sino que debe extenderse a sus escritos sobre la libertad de prensa. Sin embargo, Zemer parece apartarse de la línea argumental que soporta el derecho de propiedad intelectual en el marco de la propiedad general planteada por Locke para darle prioridad al interés colectivo vivo y abierto que permita la evolución de las ideas y el desarrollo de los autores (Zemer, 2006). ...
Este capítulo analiza desde una perspectiva comparada y con un soporte iusfilosófico los argumentos que soportan la protección de los autores tanto en el derecho de autor como en el encuadre de los derechos humanos
... When compared with the law in America such as the opinion of Lior (2006), DMCA Chapter 1204 provides provisions for those who destroy security technology, which are included in criminal offenses (Zemer, 2017). Those who destroy security technology intentionally and with commercial purposes for personal financial gain are subject to a fine of US$ 5000.00 or imprisonment for 5 (five) years for the first violation, and a fine of US$ 1,000,000 or criminal imprisonment for 10 years for further offences. ...
Agrotourism is a tourism activity that combines plantation or agricultural activities by offering unique experiences to visitors. Indonesia, which has natural resources in the plantation and agricultural sectors, provides great opportunities for the community, one of which is implemented by the Mulia Asih Farmer Group in Humbang Raya Village, Central Kalimantan. Agricultural and plantation activities require fertilizer as an important component in increasing crop production, and there are even demands for environmentally friendly use of organic fertilizer or compost as an advantage so that people innovate to create organic fertilizer processing machines from the surrounding environment. This article uses a qualitative approach to discuss the findings of local communities and analyze them with the copyright law which regulates the copyright of photographic works and portraits taken without permission. Article 12 paragraph (1) of the Copyright Law regulates economic rights to portraits, there must be written consent from the person being photographed or their heirs for reproduction, distribution, announcements, commercial use, and/or communications used for billboards, advertisements, banners, pamphlets and more. The results of this study show that the public has not realized unintentional errors due to limited information so that the innovations made are claimed to be their own work even though they have previously been discovered by other communities.
... Such a meaning of IP will be assumed in the following discussion. Authors who maintain that IP regulation could be justified by an appeal to natural rights, thereby referring to the propertarian theory, include among others Hughes (1988), Yen (1990), Gordon (1993), Zemer (2006), Moore (2012) and Mossoff (2012). In what follows four separate general objections to the propertarian IP justification are presented. ...
Propertarian justifications of intellectual property postulate the appropriation of various entities, often called patterns, designs, or technologies. These must be immaterial and should not be confused with material structures that embody them. Hence two classes of objects are distinguished. It is convenient to refer to them as types and tokens. The type must involve a condition defining which material structures should be considered its tokens. For an IP regime to be economically meaningful one must necessarily appropriate types in a way which restricts access to wide classes of similar, non-identical material structures. Therefore, type conditions must be general. They must define, with a margin of tolerance, only certain aspects of the structure, leaving others unspecified. Consequently, the relationship between such types and tokens is of many-to-many variety. The recognition of these facts leads to four problems in justifying intellectual property on propertarian grounds. The first problem is to demonstrate possession of the type in the pre-legal situation. The second one is to explain, why boundaries of an appropriated type should be placed in a particular location. The third problem is to avoid claim deadlocks resulting from conflicts of rights generated by separate overlapping types. The fourth problem is to justify why ownership of the type should entail the control over other separate entities—that is tokens. In the propertarian framework grounded in the pre-legal state of nature, satisfactory solutions do not seem to have been proposed for any of these four problems.
... Barthes. El texto "¿Qué es un autor?" 12 función autor como una necesidad social para calificar la obra, su nombre, el del autor permite clasificarla, organizarla, ubicar a la obra en relación con otros. ...
The concept 'author' has received diverse treatments along the legal theory and the theory of copyright. This article presents an analysis of the above-mentioned notion regarding its juridical and social evolution. Its purpose is to contribute to the theoretical review of the concept towards the juridical and social changes that the information technologies may originate.
... In his Second Treatise of Government [11], Locke argued that just as people own their bodies, they also own the 'fruits of their labor.' Following Locke, several authors [12,13] attempted to define 'the fruits of labor'. If fruits of labor referred to the technologies developed to produce products, it covered process patents; if the phrase referred to the products that resulted from the technologies, it covered product patents. ...
Recent patent-law changes in India's pharmaceutical industry provide opportunities to study changes of institutional and regulatory environments on innovation and social welfare in lowincome markets. From 1972 to 2004 under its process-patent regime, India's pharmaceutical industry grew to become the world's fourth largest. Indian companies were becoming globally competitive in generics and clinical testing, and moving into product R&D. Researchers have debated the effects of India's new product-patent laws' effects on these trends. The authors cover the domestic characteristics and global competitiveness of India's pharmaceutical
industry. They contrast data (from 2001 to 2004) on patents in India's process-patent regime with preliminary data (from 2005 to 2008) on patents in the country's new product-patent regime. They argue that Indian pharmaceutical companies have changed their decision-making in response to changed patent laws by moving from process to product research. However, the preliminary results indicate that these changes may have hurt domestic innovation. They conclude with strategic implications for the Indian pharmaceutical industry and highlight the need for research and public policy to establish optimal social returns from product-patent
regimes.
... In his Second Treatise of Government [11], Locke argued that just as people own their bodies, they also own the 'fruits of their labor.' Following Locke, several authors [12,13] attempted to define 'the fruits of labor'. If fruits of labor referred to the technologies developed to produce products, it covered process patents; if the phrase referred to the products that resulted from the technologies, it covered product patents. ...
As blockchain in general and NFTs in particular reshape operation logistics, data creation, and data management, these technologies bring forth many legal and ethical dilemmas. This handbook offers a comprehensive exploration of the impact of these technologies in different industries and sectors including finance, anti-money laundering, taxation, campaign-finance, and more. The book specifically provides insights and potential solutions for cutting-edge issues related to intellectual property rights, data privacy and strategy, information management, and ethical blockchain use, while offering insights, case studies, and recommendations to help anyone seeking to shape effective, balanced regulation to foster innovation while safeguarding the interests of all stakeholders. This handbook offers readers an invaluable roadmap for navigating the dynamic and evolving landscape of these new technologies.
Perkembangan ilmu pengetahuan dan teknologi telah memberi perubahan dalam kehidupan. Teknologi yang memberi dampak cukup besar adalah teknologi dunia internet, adanya internet mengenalkan masyarakat kepada dunia digital. Tentu saja perkembangan ini juga mempengaruhi hukum, terutama hukum terkait hak cipta. Karya cipta yang dahulu masih berbentuk tradisional kini dapat diubah menjadi bentuk digital atau membuat karya cipta digital. Dalam hal ini hukum hak cipta yang sebelumnya melindungi karya cipta bentuk tradision haruslah berkembang dapat mencakup melindungi karya cipta digital salah satunya dengan cara berkolaborasi dengan teknologi. Rumusan masalah yang diangkat ialah bagaimana perlindungan hukum terhadap ciptaan dalam era digital dan bagaimana implikasi pengaruh teknologi pengaman terhadap perlindungan hukum karya cipta digital. Penelitian ini merupakan penelitian normatif dengan pendekatan kualitatif yang bersifat deskriptif. Bahwa perkembangan teknologi membuat karya cipta dapat diubah menjadi bentuk digital, hal ini memberikan keuntungan seperti mudahnya penyebaran/pengumuman karya cipta namun disisi lain pelanggaran juga semakin mudah terjadi. Menghadapi perkembangan ini WIPO mengeluarkan dua konvensi internasional yang dikenal sebagai WIPO Internet Treaties yang diadopsi oleh beberapa negara. Negara Indonesia dalam hukum positif hak ciptanya telah mengimplementasikan perlindungan karya cipta digital dalam pasal-pasalnya. Saran penulis dalam kajian ini perlu lebih diperkaya hukum hak cipta kita perihal perlindungan karya cipta digital.
Lockean justifi cations of intellectual property postulate the appropriation of immaterial entities, in various contexts called types, patterns, designs, or technologies. It is widely believed that the ownership of such entities gives the owner a right to control their physical embodiments and prohibit imitation. For the prohibition to be meaningful, a condition identifying forbidden objects must be formulated. It must cover not only objects which are identical to some original artifact or its exact, ideal description, but also those which are only similar. This requires systematic answers to three questions: (1) which material structures and which of their subsets should be compared? (2) which of their characteristics should be compared? (3) how to combine these characteristics into a decision rule for token identification? There is no underlying empirical reality that could be independently consulted by individuals in order to incontestably answer these questions. Meanwhile constant evolution in technology and arts requires addressing them repeatedly. Consequently, intellectual property regimes must rely on political institutions incessantly dictating the scope of prohibition, and hence they cannot originate or exist in a prelegal state of nature.
Perkembangan ilmu pengetahuan dan teknologi telah memberi perubahan dalam kehidupan. Teknologi yang memberi dampak cukup besar adalah teknologi dunia internet, adanya internet mengenalkan masyarakat kepada dunia digital. Tentu saja perkembangan ini juga mempengaruhi hukum, terutama hukum terkait hak cipta. Karya cipta yang dahulu masih berbentuk tradisional kini dapat diubah menjadi bentuk digital atau membuat karya cipta digital. Dalam hal ini hukum hak cipta yang sebelumnya melindungi karya cipta bentuk tradision haruslah berkembang dapat mencakup melindungi karya cipta digital salah satunya dengan cara berkolaborasi dengan teknologi. Rumusan masalah yang diangkat ialah bagaimana perlindungan hukum terhadap ciptaan dalam era digital dan bagaimana implikasi pengaruh teknologi pengaman terhadap perlindungan hukum karya cipta digital. Penelitian ini merupakan penelitian normatif dengan pendekatan kualitatif yang bersifat deskriptif. Bahwa perkembangan teknologi membuat karya cipta dapat diubah menjadi bentuk digital, hal ini memberikan keuntungan seperti mudahnya penyebaran/pengumuman karya cipta namun disisi lain pelanggaran juga semakin mudah terjadi. Menghadapi perkembangan ini WIPO mengeluarkan dua konvensi internasional yang dikenal sebagai WIPO Internet Treaties yang diadopsi oleh beberapa negara. Negara Indonesia dalam hukum positif hak ciptanya telah mengimplementasikan perlindungan karya cipta digital dalam pasal-pasalnya. Saran penulis dalam kajian ini perlu lebih diperkaya hukum hak cipta kita perihal perlindungan karya cipta digital.
What is a body, a matter of law? (Rao, 2007; Scott, 1981). Where is the body? Is it integral or severable from the legal person? Is it a commodity? Have our bodies, our selves, and our labour become commodities with a market exchange value? (Radin, 1996). The bioscientific conversion of the body into information has become labelled postmodern. Jean Baudrillard described this postmodernity as ‘hyperreality’. (Poster, 1999). This means that only the viewer only acknowledges the real in its image – reality, as the hyperreal, is “always already reproduced”. (Id.). The process of conversion of the body, the human organism, into genetic information is just such a reproduction. Just as the process of conversion of the personality into reputational information is also such a reproduction. This means that the body need no longer exist only as a corporeal reality, but also as the ‘mirroring’ body, quite literally ‘a body of information.’ (Halewood, 2008)
While the Internet is generally regarded as a tool of consumer empowerment, recent innovations in e-marketing signal a disparity in the quality of knowledge that the e-buyer and e-seller each bring to the exchange process. Armed with sophisticated consumer tracking programs and advanced data mining techniques, the e-seller’s competitive advantage for anticipating consumer preference is quickly outpacing the e-buyer’s ability to negotiate fair terms for an equal trade. This chapter considers the possible threat that aggressive forms of electronic surveillance pose for a market economy in e-commerce and offers a framework for how marketing practitioners can protect consumer autonomy online. Using John Locke’s classic social contract theory as a model, I argue that information created by an end-user’s online activity is a form of ‘virtual property’ that in turn establishes a consumer’s right to privacy online.
This thesis argues that the interaction between copyright and human rights must be understood in the pitch of protecting an author’s moral and material interests. The implications of such an understanding has been analysed in three interrelated areas. One is the justification of copyright through different theories and how this can be connected to the principles of a modern conception of natural law. This has demonstrated that copyright responds to principles based on democracy, freedom of expression and equal rights of participation in the life of society. By protecting the author, society finds a mechanism that guarantees the diversity and dissemination of thoughts. Here is suggested that a concept of author should respond to the human potentiality of creativity as mean for free participation in the life of society. The second area of analysis of author’s rights is the comparative study of legislation, case law and doctrine in the mechanisms that Mexico, Argentina, Colombia, the US, the UK and Spain produce to the protection of the author. This has implied also the study of how some of those countries that have developed a constitutional structure protecting author’s interests within the understanding of the role that such a protection plays in the construction of a knowledge-based society. The study led to finding that those mechanisms related to the regulation of the contractual relationship between authors and producers are the most important for protecting author’s interests. There, the problem is to what extent the law can limit freedom of contract towards the protection of author’s interests. The international dimension of this problem shows that the narrative of protecting the author has been present in the discussion towards the construction of a universal copyright system. Such an aim of universalisation is coherent with the introduction of author’s rights in the structure of human rights, as for example in the ICESCR. The problem of regulating freedom of contract has been part of the discussions of international instruments recently in the texts of the US-Chile FTA and the TPP. It has been also considered in the recent proposal of EU Directive for Copyright in the Digital Market. However, the challenge is if a principle of protecting author's autonomy, dignity and freedom of creation which would limit freedom of contract in copyright could be reflected in an international instrument. The conclusion is that protecting the author requires attention and legal action, and that there are mechanisms at hand for such a purpose, which would add coherence to the interaction between copyright and human rights.
What are the key factors that facilitate innovation and creativity? This chapter begins by challenging the traditional emphasis on IP rights as an incentive to creators to innovate. While it is true, that IP rights provide for a much-needed tool to protect creative ideas, we argue that a much more important policy objective is to facilitate the dissemination of ideas in the society. Moreover, we submit that in the age of networked societies, dissemination of ideas could be facilitated by creating a trust-based ecosystem with different incentives for various kinds of intermediaries to emerge and compete with each other and making sure that users are actually able to choose through which intermediary information should be accessed or disseminated. We begin this chapter by offering a brief exposition of the notions of social capital and mutual trust. Mutual trust is a complex phenomenon involving multiple stages of cognitive decisions between a trustor and a trustee. The degree of trust evolves over time and is based on the experience between the communicating parties. Accumulation of trust between members of a society (a kind of social capital) significantly contributes to sharing of ideas and enhances cooperation. In more complex societies, trusting one’s neighbor (intermediary) is one of the major factors that minimizes risk and facilitates communication through neighbors (intermediaries). In designing a trust-based innovation ecosystem, it is first of all important to identify the relevant stakeholders and their main interests. Such stakeholders and their interests may vary depending on their geographical location or the market in which they are operating. We argue that innovation thrives in more flexible regulatory environments, which pose less restrictions and are able to swiftly adjust to the changing needs of technological evolution. Moreover, we suggest that regulators should aim to create ecosystems where more intermediaries could emerge and compete with each other. Having multiple intermediaries enables users to choose whom they believe to be able to provide higher quality products and services. Higher level of trust between various stakeholders of ecosystem contributes to sharing, collaboration, dissemination of information and innovation.
While the Internet is generally regarded as a tool of consumer empowerment, recent innovations in emarketing signal a disparity in the quality of knowledge that the e-buyer and e-seller each bring to the exchange process. Armed with sophisticated consumer tracking programs and advanced data mining techniques, the e-seller's competitive advantage for anticipating consumer preference is quickly outpacing the e-buyer's ability to negotiate fair terms for an equal trade. This chapter considers the possible threat that aggressive forms of electronic surveillance pose for a market economy in e-commerce and offers a framework for how marketing practitioners can protect consumer autonomy online. Using John Locke's classic social contract theory as a model, I argue that information created by an end-user's online activity is a form of 'virtual property' that in turn establishes a consumer's right to privacy online.
Does intellectual property satisfy the requirements of the Lockean proviso, that the appropriator leave “enough and as good” or that he at least not “deprive others”? If an author's appropriation of a work he has just created is analogous to a drinker “taking a good draught” in the flow of an inexhaustible river, or to someone magically “causing springs of water to flow in the desert,” how could it not satisfy the Lockean proviso?
The primary, and perhaps sole, function of government according to Locke was to secure and protect the lives, liberties, and property of individuals who consented, explicitly or tacitly, to a specific political union. The question that I will address in this Article, and one that I took up over fifteen years ago, is: should we consider intellectual works to be the proper subjects of Lockean property claims? My answer then and now is "yes," with the acknowledgement that
such a view may require substantial revisions to Anglo-American systems of intellectual property. I will argue that intellectual property rights are no different from rights to lives, liberties, and estates - that is, intellectual property rights should not be seen as state-created entities offered as an inducement to bring forth new knowledge. The upshot of viewing intellectual property rights as state-created monopolies, far too often controlled by the
powerful and well-connected, is the seemingly pervasive opinion that systems of intellectual property represent the mafia family on a global scale. In my view, to be justified and to warrant worldwide coercion, systems of intellectual property should be grounded in a Lockean theory of property - a theory that acknowledges and protects the natural rights of authors and inventors. Part II of this Article will present the main outlines of a Lockean theory of intellectual property. Part III will take up several specific objections that have been leveled against my preferred view. Finally, Part IV will consider several general objections to intellectual property.
Debates over intellectual property’s justifications tend to treat natural rights and utilitarian accounts as competitors, but they should be seen as complements instead. Lockean and Kantian theories of intellectual property highlight the strong interests that intellectual property creators have in profiting from and exercising some degree of control over their work, but neither theory gives sufficient justification for the full assortment of rights that intellectual property owners have under current law. Utilitarian accounts provide an essential supplement to these natural rights theories by focusing on society’s interests in the production of useful information and creative expression, but that does not mean intellectual property law should single-mindedly strive only to maximize social welfare. Developing both natural rights – based and utilitarian justifications, this dissertation advances a pluralist account of intellectual property that understands different features of copyright, patent, and trademark law to be serving different normative interests.
The Copyright Law and the Progress of Science and the Useful Arts 2 provides an analysis of the current copyright laws against the original goal of the United States copyright system set out by the Constitution. The Constitutional goal of enacting copyright law is to "promote the progress of science by granting authors exclusive rights over literary and artistic works." 3 The book suggests that one of the frictions within the current copyright system is its conflicting attempts to protect "private economic rights over literary and artistic works," 4 and to also further the goal of promoting the progress of science and the useful arts. The historical trend in copyright law is a steady increase in the restrictions that limit a user's ability to access copyrightable works, as opposed to making information more accessible to individuals. In turn the system has limited the ability of society to access works in a public domain. The purpose of the book is to explore the reasons for the difficulties of the copyright system, and to begin to identify a system that would be more in sync with the Constitutional goals and the technological capabilities of society today.
The concept of property has a long tradition and it is widely accepted as a regula -tion scheme to allocate tangible scarce resources. Supporters of intellectual property rights tend to base their argumentation on traditional property rights theories as proposed by John Locke, Georg Wilhelm Friedrich Hegel and Jean-Jacques Rousseau. This presentation focuses on the question, whether Locke's labor appro-priation theory can be applied to non-material goods. The results show that despite the fact that labor provides a strong connection between individuals and resources it widely fails to justify appropriation of non-material goods. Strong Lockean property rights in ideas must be refuted since they would harshly interfere with other civil liberties such as free speech, which Locke himself found extremely important. Furthermore, even partial appropriation seems problematic, given that private ownership is a precondition for efficient material production but not for the production of intellectual goods. Since intellectual production is a social endeavor and creation ex nihilo is im-plausible intellectual laborers may only (partly) appropriate the fruits of their labor but not the entire value of their final produce. • Locke argues that individuals are entitled to exclusively possess a resource to secure the production process. Given that intellectual production does not depend on exclusive ownership, intellectual resources remain in the public domain. • It is only justified to appropriate the fruits of one's own labor, not those of others. This finding seems to be particularly controversial, given the pre-valent practice of companies seizing the ideas of their employees. • Appropriation of ideas must not hinder other people to appropriate their own share. Furthermore, this pool of intellectual goods must be bigger than the pool, which people could expect in a natural state, in which an in-tellectual property regime is absent.
Both antitrust and intellectual property laws are intended to facilitate economic growth. Antitrust is meant to encourage competition of all kinds and intellectual property law should offer inventors and artists the correct incentives to develop new ideas and technologies, but the harsh reality is that antitrust and IP laws have wandered off this course. This book analyzes the current state of competition (antitrust) and intellectual property laws, and proposes realistic reforms that will encourage innovation. As with antitrust and a reform process that aligned injury requirements in lawsuits with the incentive to compete, this book proposes similar reforms for patent and copyright law, and considers both the uses and limitations of antitrust as a vehicle for intellectual property law reform. This book considers how antitrust and IP law should engage practices that restrain rather than promote innovation, and covers the troubled topic of IP "misuse," which the chapters suggest needs broader reach but narrower remedies. The book examines the uses and limits of antitrust to address a variety of practices in innovation intensive markets, including interconnection in networks, duties to deal, and internet neutrality. The book constructs a framework and rules for governing the "innovation commons," or the vast area that involves collaborative innovation. Finally, it considers ways to further competition in the licensing and distribution of IP rights, and offers several proposals for specific reforms, most of which can be instituted by the courts without the need for new legislation.
Praktisch overal ter wereld genieten auteurs tegenwoordig van rechtswege bescherming tegen verveelvoudiging en openbaarmaking van hun werk. In tegenstelling tot het octrooirecht of het merkenrecht kent het auteursrecht geen formaliteiten, zoals een registratieplicht of een verplichting de exemplaren van werken te voorzien van een teken (een copyright notice). Hierdoor is de drempel voor auteursrechtelijke bescherming relatief laag en is er niet altijd voldoende informatie voorhanden om de exploitatie van rechten adequaat te regelen. Om meer rechtszekerheid te creëren omtrent auteursrechtelijke claims, het vragen en regelen van toestemming voor het (her)gebruik van werken te vergemakkelijken en het publieke domein te verrijken met een groter aantal werken wordt in toenemende mate gepleit voor herinvoering van formaliteiten in het auteursrecht. Stef van Gompel analyseert of dit mogelijk is vanuit juridisch en theoretisch perspectief. Daartoe bestudeerde hij de geschiedenis, ratio en mogelijke toekomst van auteursrechtformaliteiten. Hij concludeert dat het vanuit juridisch-theoretisch oogpunt mogelijk is de bescherming van de economische rechten van auteurs (mede) afhankelijk te stellen van formaliteiten. Het formaliteitenverbod in de Berner Conventie biedt thans echter onvoldoende ruimte voor herinvoering van formaliteiten. Om de uitdagingen waarmee het auteursrecht wordt geconfronteerd, adequaat te kunnen aanpakken zou de Berner Conventie op dit punt moeten worden gewijzigd, betoogt Van Gompel.
In Constructing Commons in the Cultural Environment, Michael J. Madison, Brett M. Frischmann, and Katherine J. Strandburg offer an innovative and attractive vision of the future of cultural and scientific knowledge through the construction of “cultural commons,” which they define as “environments for developing and distributing cultural and scientific knowledge through institutions that support pooling and sharing that knowledge in a managed way.” The kind of “commons” they have in mind is modeled on the complex arrangement of social norms that allocate lobstering rights among fishermen in Maine and extends to arrangements such as patent pools, open-source software development (e.g., Linux), and the modern research university.This Response poses a series of questions about cultural commons. The first set of questions will interrogate the structure, boundaries, and coherence of the idea of “cultural commons”: that is, “What is a cultural commons?” The second set of questions will explore the fundamental assumptions of the case for these institutions: “What are the normative foundations for cultural commons?” The third set of questions will inquire into the feasibility of the proposal for cultural commons as a method for governing information: “Are cultural commons possible?” These questions are intended to rigorously interrogate the foundational assumptions of the very intriguing proposal offered by Madison, Frischmann, and Strandburg.
This paper offers a different pragmatic and patent-based approach to concerns regarding the negative effects of genetic-based patenting on advancing scientific research and providing adequate and accessible health care services. At the basis of this approach lies an explication of a mandatory provisional patented paper procedure (PPPA), designed for genetic-based patents and administered by leading scientific journals in the field, while officially acknowledged by the USPTO, and subsequently by other patent offices as well. It is argued that the uniqueness of PPPAs lies in subsequently mitigating the negative ramifications of genetic patents on scientific research and genetic-based health care services, while basing such mitigation on a patents' advocate viewpoint that neither discards the patent system nor jeopardizes its integrity.
This paper uses two recent works as a springboard for discussing the proper contours of intellectual property protection. Professor Lessig devotes much of The Future of Ideas to demonstrating how the expanding scope of intellectual property protection threatens the Internet as an innovation commons. Similarly, Professor Litman's message in Digital Copyright is that copyright law is both too complicated and too restrictive. Both authors contend that as a result of overprotecting individual rights, creativity is stifled and the vitality of the intellectual commons is in jeopardy. It is difficult to evaluate the claims and policy prescriptions of these books without some appreciation for the moral foundations of intellectual property. The utility and labor desert theories remain the two most prominent in the Anglo-American tradition. After exploring those theories, we argue for a secure regime of protection based on the Lockean vision that property rights are justly deserved as a reward for labor that creates value. However, as Locke's famous proviso implies, even a natural property right is not absolute and must be balanced by regard for the public domain. But a natural right cannot be sacrificed simply to advance technological innovation or to achieve marginal social and economic gains. While we agree with Lessig and Litman that recent legislation goes too far we conclude the essay by attempting to illustrate that some of their policy recommendations err in the opposite direction by underprotecting valid property rights.
T his paper introduces a model of collective creativity that explains how the locus of creative problem solving shifts, at times, from the individual to the interactions of a collective. The model is grounded in observations, interviews, informal conversations, and archival data gathered in intensive field studies of work in professional service firms. The evidence suggests that although some creative solutions can be seen as the products of individual insight, others should be regarded as the products of a momentary collective process. Such collective creativity reflects a qualitative shift in the nature of the creative process, as the comprehension of a problematic situation and the generation of creative solutions draw from—and reframe—the past experiences of participants in ways that lead to new and valuable insights. This research investigates the origins of such moments, and builds a model of collective creativity that identifies the precipitating roles played by four types of social interaction: help seeking, help giving, reflective reframing, and reinforcing. Implications of this research include shifting the emphasis in research and management of creativity from identifying and managing creative individuals to understanding the social context and developing interactive approaches to creativity, and from a focus on relatively constant contextual variables to the alignment of fluctuating variables and their precipitation of momentary phenomena.
Defenders of transformative uses have invoked the First Amendment to bolster claims that such uses should not be subject to the copyright owner’s permission. But this focus on transformation is critically incomplete, leaving unchallenged much of copyright’s scope, despite the large number of nontransformative copying activities that are also instances of free speech. The current debate leaves the way open for expansions of copyright that, while not targeted at dissenting viewpoints, nonetheless may have a profoundly negative effect on freedom of speech. In other words, transformation has limited our thinking about the free speech interests implicated by copying. This essay discusses the free speech value of pure copying, from audience interests to speaker interests in self-expression, persuasion, and affirmation of connection with a larger political, religious, or cultural group.
Copyright doctrine provides that copyright is available for expressive works. The doctrine Provides also that copyright is not available for functional works. There is a significant category of works composed of functional expression, the availability of copyright for which is problematic. In this Article, Professor Weinreb argues that the current uncertainty about copyright for computer programs and the user interface of programs brings the issue of copyright for functional expression into sharp focus and raises fundamental questions about copyright generally Traced to their source, the doctrines in question rest on nothing more than a conventional understanding that works of certain types are copyrightable. The justifications of copyright as an author's "natural right" and as a means of furthering the production and dissemination of authorial works are similarly dependent on the convention, which they purport to explain.
In the 1976 Copyright Act, Congress extended the term of copyright protection for authors that had existed under the 1909 Act. Congress, however, strengthened the reversion feature of the 1909 Act, which returned any previously transferred rights to the author or her successors. In this note, R. Anthony Reese examines each Act's provisions as to the length of the copyright term and reversion through the eyes of two very different theories of property rights: libertarian Lockeanism and rent-theory Lockeanism. Mr. Reese submits that a libertarian Lockean would view intellectual property rights as prepolitical, natural rights which the state exists to protect. Conversely, he proposes, a rent-theory Lockean would view intellectual property rights as dependent upon the state and justified only to the extent that they compensate an author for the sacrifice involved in the creation of a copyrightable work. Mr. Reese concludes that although the libertarian Lockean may find the 1976 and 1909 Acts more objectionable than would a rent-theory Lockean, both Copyright Acts reflect a view of intellectual property that combines aspects of both philosophies.
Though the Earth, and all inferior Creatures be common to all Men, yet every Man has a Property in his own Person. This no Body has any Right to but himself. The Labour of his Body, and the Work of his hands, we may say, are properly his. Whatsoever then he removes out of the State that Nature hath provided, and left it in, he hath mixed his Labour with, and joyned it to something that is his own, and thereby makes it his Property. It being by him removed from the common state Nature placed it in, hath by his labour something annexed to it, that excludes the common right of other Men. For this Labour being the unquestionable Property of the Labourer, no Man but he can have a right to what that is once joyned to, at least where there is enough, and as good left in common for others.
John Locke, Second Treatise of Government, section 27
One of the first (conceptual) frameworks developed for understanding the relation of science and technology to the economy has been the linear model of innovation. The model postulated that innovation starts with basic research, is followed by applied research and development, and ends with production and diffusion. The precise source of the model remains nebulous, having never been documented. Several authors who have used, improved, or criticized the model in the past fifty years rarely acknowledged or cited any original source. The model usually was taken for granted. According to others, however, it comes directly from V. Bush’s Science: The Endless Frontier ([1945] 1995). This article traces the history of the linear model, suggesting that it developed in three steps corresponding to three scientific communities looking at science analytically. The article argues that statistics is a main reason the model is still alive despite criticisms, alternatives, and having been proclaimed dead.
Since the ratification of the constitution, intellectual property law in the United States has always been, in part, constitutional law. Among the enumerated powers that Article I of the Constitution vests in Congress is the power to create certain intellectual property rights. To a remarkable extent, scholars who have examined the Constitution's Copyright Clause have reached a common position. With striking unanimity, these scholars have called for aggressive judicial review of the constitutionality of congressional legislation in this area. The champions of this position - we refer to them as the IP Restrictors - represent a remarkable array of constitutional and intellectual property scholars. In this terms's Eldred v. Aschroft, leading IP Restrictor Lawrence Lessig, representing petitioner Eric Eldred, sought to convince the Supreme Court that the IP Restrictors' view of the Copyright Clause was the correct one. By a vote of 7-2, the Supreme Court rejected Eldred's claim and upheld the statute. But while the Court rejected the IP Restrictors' vision, it did not offer a satisfactory competing conception of the Copyright Clause and how the courts should construe it. Critically, even though the standard of review was of central significance, the Court applied a deferential form of rational basis scrutiny without explaining why this was the appropriate standard. This paper develops the case for deferential review of congressional legislation in the area of intellectual property and, at a deeper level, offers a new paradigm for understanding the Copyright Clause. We propose that from the vantage point of constitutional law, intellectual property should be treated as a form of constitutional property. Deference to congressional judgments is warranted because congressional legislation affecting intellectual property is analytically similar to congressional legislation affecting other forms of property. Courts subject congressional legislation affecting traditional forms of property to deferential review because of concerns about institutional competence and respect for majoritarian decisionmaking. These two concerns in conjunction with proper regard for holistic constitutional interpretation should also lead courts to deferential review of congressional legislation affecting intellectual property. In developing our position, we draw on constitutional history and, in particular, the lessons of Lochner v. New York. In defense of their vision of the Constitution, the IP Restrictors and the dissenters in Eldred make claims about the original understanding that, to an astonishing extent, echo those made by proponents of Lochner-era jurisprudence. We argue, however, that these claims fail for two reasons. First, the IP Restrictors and the dissenters disregard the limited scope of judicial review at the time of the Founding. Additionally, the IP Restrictors and dissenters disregard the range of views among the Founders about monopolies.
This paper examines the thesis that human labor creates property rights in or from previously unowned objects by virtue of labor''s power to make new things. This thesis is considered for two possible roles: first, as a thesis to which John Locke might have been committed in his writings on property; and second, as a thesis of independent plausibility that could serve as part of a defensible contemporary theory of property rights. Understanding Locke as committed to the thesis of makers'' rights has seemed to many of the best known recent Locke scholars to explain and unify Locke''s various claims about property in a way that more traditional labor-mixing interpretations cannot. This paper argues that there is in fact no convincing evidence in Locke''s texts to suggest any commitment to the thesis of makers'' rights for humans. Further, not only does a version of the traditional labor-mixing argument yield a much superior interpretation of Locke''s writings, it is an argument that is far more convincing than makers'' rights arguments, quite independent of its usefulness in the interpretation of Locke''s theory.
Growth in this model is driven by technological change that arises from intentional investment decisions made by profit-maximizing agents. The distinguishing feature of the technology as an input is that it is not a conventional good or a public good; it is a nonrival, partially excludable good. Because of the noconvexity introduced by a nonrival good, price-taking competition cannot be supported. Instead, the equilibrium is one with monopolistic competition. The main conclusions are that the stock of human capital determines the rate of growth, that too little human capital is devoted to research in equilibrium, that integration into world markets will increase growth rates, and that a large population is not sufficient to generate growth. Copyright 1990 by University of Chicago Press.
This paper examines John Locke's labor theory of ownership from an ecological perspective, and explores its role in western US property rights disputes. The labor theory of ownership describes how an individual, through application of labor, can justifiably acquire a private property right to the yield of commonly-held natural resources. The presence of ecosystem processes and services beneficial to humans, coupled with equity and no-harm principles, places limits on the extent to which strong labor-based rights can be justified. Property claims to areas that have not undergone physical transformation due to human labor are less-strongly justified. Rather than continue in its inappropriate role in support of strong private property rights in the western US, the labor theory can play a new role in justifying and limiting ecosystem management regulation of private and government-owned lands and who should pay. If ecosystem management regulations prevent, reduce, or eliminate harms to ecosystem services and processes, the costs of such management can justifiably fall on private landowners and private users of public lands. If such programs augment existing ecosystem services and processes, costs should fall on the government.