Justificatory Theories for Intellectual Property Viewed Through the Constitutional Prism

38 Pages Posted: 29 Mar 2018

Date Written: March 16, 2018

Abstract

In order to determine the extent to which intellectual property rights should enjoy protection under the constitutional property clause, some of the classical and newer justificatory theories for property may be employed, including the labour theory, reward theory, incentive theory, theory of natural law, spiritual theories, personality theory, economic theory, and theory of natural monopoly. These theories must be applied in line with the Constitution of the Republic of South Africa, 1996, keeping in mind that other fundamental rights must be balanced with the protection afforded to intellectual property in order to ensure its continued production. It is also important that intellectual property statutes be developed to promote a thriving intellectual commons.

Keywords: Constitutional property; intellectual property; justificatory theories; labour theory; reward theory; incentive theory; theory of natural law; excludability; spiritual theories; personality theory; economic theory; theory of natural monopoly; intellectual commons; public domain.

Suggested Citation

du Bois, Mikhalin, Justificatory Theories for Intellectual Property Viewed Through the Constitutional Prism (March 16, 2018). Potchefstroom Electronic Law Journal, Vol. 21, 2018. Available at SSRN: https://ssrn.com/abstract=3151320

Mikhalin Du Bois (Contact Author)

University of South Africa ( email )

P.O. Box 392
UNISA
Pretoria, Gauteng 0003
South Africa

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