Intellectual property rights

AuthorRichard A. Spinello
Publication Date13 Mar 2007
Intellectual property rights
Richard A. Spinello
Boston College, Chestnut Hill, Massachusetts, USA
Purpose – The purpose of this paper is to provide an overview of intellectual property justifications
and the basics of intellectual property law.
Design/methodology/approach – The paper examines intellectual property rights, discussing
such areas as: copyright protection, patents, trademarks, trade secrets and common and current
Findings – Overprotection can be as damaging as underprotection because of the harm to the
intellectual commons. The ideal property rights regime is one that prudently seeks balance.
Originality/value – Advises that the goal of the legal system should be theprovision of just enough
protection to reward creative workers for their labor and to spur future innovation. At the same time, it
is necessary to avoid overly strong protection that will deplete the intellectual commons or unduly
restrict its expansion, and thereby fail to promote social welfare.
Keywords Intellectualproperty, Copyright law
Paper type Research paper
Before reviewing the specific types of intellectual property rights, it is instructive to
discuss the broad normative justifications for those rights. We need to appreciate the
traditionally accepted rationales for intellectual property laws before specifying the
details and the basic parameters of those laws.
The statutory framework that protects intellectual objects in the USA has its roots
in the US Constitution (Art. 1, § 8, cl. 8.), which gave Congress the authority to
“promote the Progress of Science and useful Arts by securing for limited Times to
Authors and Inventors the exclusive right to their respective Writ ings and
Discoveries”. To a great extent, the inspiration for the laws stipulating this
“exclusive right” can be found in the normative frameworks. One such framework
comes from the philosophy of John Locke. Locke’s famous rationale for proper ty rights
presumes that the prospective owner (or creator) has the foundation of a property right
within herself in the form of the personal labor that she performs. Locke argued that
labor on what is common and unowned engenders a property right:
As much land as a man tills, plants, improves, cultivates, and can use the product of, so much
is his property. He, by his labor does, as it were, enclose it from the common (Locke, 1952; my
Although Locke had in mind physical property such as land, scholars have plausibly
argued that this theory is applicable to intellectual property as well. In this case what is
“common” or “unowned” amounts to the intellectual commons, that is, ideas,
algorithms, generic plots, language, and so forth. This application of Lock e’s theory to
intellectual property seems quite tenable. As Easterbrook (1990) remarks, “Intellectual
property is no less the fruit of one’s labor than is physical property.” In an obvious
The current issue and full text archive of this journal is available at
Received 31 January 2005
Revised 19 December 2006
Accepted 19 December 2006
Library Hi Tech
Vol. 25 No. 1, 2007
pp. 12-22
qEmerald Group Publishing Limited
DOI 10.1108/07378830710735821

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