REVISITING JUSTIFICATION THEORIES FOR PROTECTION OF INTELLECTUAL PROPERTY: CONTEMPORARY PERSPECTIVES

Abstract

The conflict between recognition of individual effort in creation of any intellectual work, guaranteed by the protection of intellectual property rights, and the considerations of social welfare in the free dissemination of intellectual works has long been a point of academic discussion. To further the claim for a regime for intellectual property rights, several justification theories have been put forward. These range from the Lockean justifications to utilitarian arguments and personhood theories. The Lockean justification is based on viewing intellectual work as an embodiment of one’s labour and thus one’s private property. On the other hand, utilitarian arguments are centred around the utility of such a regime for promotion of cultural and scientific progress. Apart from these, there are personhood theories, which view the work as an extension of the self of the creator. Since the prescriptive power of these theories is severely limited, to justify all aspects of the existing IPR regimes, more pragmatic and economic justifications have also been put forward utilising models such as of the Nash Equilibrium and Game Theory. Any framework of intellectual property protection must be grounded in sound juristic principles. This is crucial for the framework to enjoy full moral and political allegiance. Thus, in the wake of the discussion as to the extension of intellectual property protection to new subjects such as traditional knowledge, traditional cultural expression and gene patenting, this article would be indulging in an important task of revisiting and analysing these justification theories as well as the contemporary and pragmatic approaches