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The making of a new copyright Lockean

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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. ...
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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.
... 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. ...
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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.
... 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. ...
... 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. ...
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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. ...
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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.
... 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. ...
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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.
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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.
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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.
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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.
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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
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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.
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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.
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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.
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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.