The Contemporary Ideological Legitimacy of Global Intellectual Property Rights

Abstract

This article draws upon three theoretical arguments to frame the ideological nature of global intellectual property rights. The first is the work of Robert Merges on the justification of intellectual property rights. The second is the work of the early twentieth century American legal scholar Wesley Hohfeld and his theory on “conceptions of property”. The third work is that of John Rawls and his approach to “pluralism”. These works have a common theme in that they help to frame or conceptualise intellectual property rights in certain ideological existence I argue. The article explains that this ideological existence relates to how intellectual property rights are supported at the global level as instruments of private property governance. The article assesses, for instance, how intellectual property rights in international instruments such as the TRIPs Agreement are seen as part of the ideological paradigm that maintains a “a right to property” beyond the state, but also compare how domestic participants such as farmers also believe they have a “right to property” in patented seeds owned by multinational corporations. The result is that both the domestic and international legal structure does not allow for alternative justification of intellectual property rights.

Keywords: 'Rights', Property theory; Hohfeld, Locke, Rawls, Merges, Pluralism, Proportionality; IP Justification

JEL Classification: K11,