Eudemonic Intellectual Property: Patents and Related Rights as Engines of Happiness, Peace and Sustainability

Vanderbilt Journal of Entertainment & Technology Law, Vol 14, Issue 3, Spring 2012

49 Pages Posted: 3 Sep 2011 Last revised: 12 Sep 2014

See all articles by Estelle Derclaye

Estelle Derclaye

University of Nottingham, School of law

Date Written: September 1, 2011

Abstract

The predominant justification for most intellectual property rights is the incentive theory or utilitarian rationale. Behind this justification lies the Western idea of progress and its derivatives, liberalism, capitalism and consumerism. This article shows that the progress ideology rests on assumptions which are flawed and therefore propounds that it must be abandoned and replaced by another justification.

After having shown that the predominant justification for intellectual property rights is the incentive theory, which rests on the idea of progress (section 1), this article traces back the history of the idea and show its parochialism in both time and space (section 2). Section 3 then reveals that the assumptions behind the progress idea are either wrong or impossible to prove. The final section proposes a new justification for intellectual property rights based on universal and thus legitimate values, namely happiness, peace, necessity and sustainability. It proposes ways to integrate the new justification in the substantive law and counters the arguments against the new justification.

In order to answer the question this article addresses, it is necessary to take both a historical and philosophical perspective. As intellectual property rights are Western in origin, a Western perspective is by definition taken. I chose the two most representative Western legal systems to do so namely the European Union (EU) and the United States (U.S.). The philosophical and economic history of the West is compared with that of the Muslim world and some Asian countries namely China and Japan, as they also represent a very large part of the world.

Keywords: intellectual property, patents, postmodernism, Theory of IP, IP Justifications, Europe, United States

Suggested Citation

Derclaye, Estelle, Eudemonic Intellectual Property: Patents and Related Rights as Engines of Happiness, Peace and Sustainability (September 1, 2011). Vanderbilt Journal of Entertainment & Technology Law, Vol 14, Issue 3, Spring 2012, Available at SSRN: https://ssrn.com/abstract=1921548

Estelle Derclaye (Contact Author)

University of Nottingham, School of law ( email )

Nottingham NG7 2RD
United Kingdom

HOME PAGE: http://www.nottingham.ac.uk/law2/staff/estelle.derclaye

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