The Social Function of Intellectual Property Rights, or How Ethics can Influence the Shape and Use of IP Law

Abstract

The social function is inherent to any legal rule. It allows for the rights of individuals to be weighed against competing rights. Being part of a broader legal system, these rights must always be put in context with other rights of equal value and with collective interests. Insisting on the social function of intellectual property rights thus amounts to identifying a need for moderation and balance in their conception and implementation - a need that has sometimes been lost sight of in recent developments. Therefore, taking into closer consideration the social function of intellectual property rights might help counter and mitigate certain expansionist tendencies in current legislation. In a time when intellectual property rights are facing a serious crisis of legitimacy, the restoration of their social function puts universal ethical principles at the heart of the debate, which can only in the long term contribute to re-establishing their public acceptance.

Keywords: Ethics, Functions of Intellectual Propery Rights, Philosophy of Law, Social Bounds of IP, Competition Law, Abuse/Misuse of Rights, Fundamental Rights