Intellectual Property: Theory, Privilege, and Pragmatism
Canadian Journal of Law and Jurisprudence, Vol. 16, No. 2, pp. 191-216, July 2003
26 Pages Posted: 16 Dec 2005 Last revised: 6 Mar 2018
Date Written: December 15, 2011
In the most general terms, this article focuses on the tension between competing justifications of intellectual property. Section I examines the nature and definition of economic pragmatism and argues that, while economic pragmatism comes in many flavors, each is either unstable or self-defeating. Section II advances the view that Anglo-American systems of intellectual property have both theoretical and pragmatic features. In Section III a sketch of a theory is offered - a theory that may limit applications of economic pragmatism and provide the foundation for copyright, patent, and trade secret institutions. To be justified - to warrant coercion on a worldwide scale - systems of intellectual property should be grounded in theory. Intellectual property rights are, in essence, no different than our rights to life, liberty, and tangible property. Intellectual property rights are neither pure social constructions nor bargains without foundations.
Keywords: intellectual property, John Locke, pragmatism
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