1.5 - The legal foundation of intellectual property rights
Print this pageFoundations. For a proper understanding of the nature and scope of intellectual property rights one also has to consider their legal foundation. That foundation is twofold. On the one hand, there is the natural rights approach, which proclaims that a person is entitled to the fruits of his labor and skill. On the other hand, there is the utilitarian approach, which comes from the perspective that awarding intellectual property rights is a useful instrument “to promote the progress of science and the useful arts” as the patent and copyright clause of the US Constitution puts it.
Complementary justifications. While reviewing these two justifications for IPRs, one should realize that they are not mutually exclusive but complementary. It is therefore not a mathematical exercise with only one valid outcome. These two grounds only provide different perspectives and differences in emphasis on what is, or what is not, critical for the justification of IPRs. The chosen point of view will influence the determination of the minimum requirements that protectable subject matter of a patent, trade mark or copyright has to meet or the maximum scope of protection that intellectual property right should provide. Such exercises are therefore not only of academic interest, but sometimes do have a very practical and direct effect on the benefits that the owner of an IPR may enjoy and the limitations he may have to live with. Therefore, depending on where one puts the emphasis – the natural rights or the utilitarian approach – a substantially different outcome may be the result.
1.5.1 - Historical perspective
