Analysis On Justification Of Intellectual Property Rights

The justification for intellectual property is a basic question regarding intellectual property law. There has been a lot of scholarly discussion on this topic. Justification theories are fundamental for the establishment of intellectual property. This paper reviews three theories of justification for intellectual property: the labor theory, the personality theory, and the utilitarian theory.The labor theory derives from the propositions on property in Locke's Two Treaties on Government. The central argument is that labor can be a source of property. According to Locke, through labor, individuals can obtain property rights over things that initially belong to public sphere. Following Locke, many scholars debated about the labor theory. Some scholars believe that Locke's property-right theory had laid a firm foundation for intellectual property. This is particularly true with respect to the concept of"public sphere"For most kinds of property, the increase in the private property would inevitably result in the decrease of such property in the public sphere. However, this proposition does not apply to intellectual property, which can be simultaneously used by many individuals without decreasing the stock of human knowledge. At the same time, some other scholars challenged the labor theory. For example, labor is only a way to acquire property. It can not explain the source of property. Also, the labor theory can not explain many institutions in intellectual property: for example, patents can be granted to only one unity, the time limitation of intellectual property, and the limitations on intellectual property rights, etc.The personality theory originates from Europe. It has been influenced by the theories of Kant,Fichte and Hegel . The personality theory insists that there exists close relationship between the work and the author: the former is an externalization of the latter. After analyzing the concept of"personality"under different circumstances, I think that the"personality"essentially has the same meaning in copyright law and civil law and therefore can be protected through civil law. The personality theory is a theory that thinks highly of the author. Thus, personality began to be covered with a"noble color."This paper proposes that the word"personality"should not be understood as some interest that is unique to and inseparable from the person. Rather, it should be understood as individual's intellect and wisdom. Both arts and inventions are representations of individual intellect and wisdom. Therefore, the author or the inventor should have intellectual property over the work or invention.According to the utilitarian theory, the purposes of intellectual property include: to promote social welfare, to encourage the production of arts and inventions by endowing an exclusive right to the author, and to balance individual interests with public interests. If it can be alleged that the labor theory and the personality theory are based on individual rights, then the utilitarian theory is based on social interests. The utilitarian theory is a specification of Bentham's argument for"the greatest happiness of the greatest number of people."The utilitarian theory insists that intellectual property is an encouragement for creative activities. Although it may sometimes harm public interests, it generally promotes social welfare. The economic analysis of intellectual property law represents an application of utilitarian principles. However, the utilitarian theory has an inherent problem: it is hard to calculate the costs and benefits of intellectual property.The three theories do not provide a uniform justification for intellectual property. Each contains certain tensions and indeterminacy. Nevertheless, we can not deny the value of these theories. Although they are far from perfect, together they form the theoretical foundation for intellectual property.