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JETLaw is already gearing up for Volume 14, Issue 3! Below is a sneak preview from an Issue 3 article written by Estelle Derclaye, Associate Professor & Reader in Intellectual Property Law at the University of Nottingham School of Law. Professor Derclaye holds degrees in law from the University of Liège (Licence en droit; Diplome d’Etudes Specialisées en droit), The George Washington University (LLM) and London (PhD). Prior to joining the University of Nottingham in 2006, she practiced intellectual property in an international law firm in Brussels and prior to that, was a lecturer at the Universities of Leicester and London (Queen Mary).
Eudemonic Intellectual Property:
Patents and Related Rights as Engines of Happiness, Peace and Sustainability
The predominant justification for most intellectual property rights is the incentive theory or utilitarian rationale. Behind this justification lies the Western idea of progress and its derivatives, liberalism, capitalism and consumerism. This Article shows that the progress ideology rests on assumptions which are flawed and therefore propounds that it must be abandoned and replaced by another justification.
After having shown that the predominant justification for intellectual property rights is the incentive theory, which rests on the idea of progress (Part I), this Article traces back the history of the idea and show its parochialism in both time and space (Part II). Part III then reveals that the assumptions behind the progress idea are either wrong or impossible to prove. The final part proposes a new justification for intellectual property rights based on universal and thus legitimate values, namely happiness, peace, necessity and sustainability. It proposes ways to integrate the new justification in the substantive law and counters the arguments against the new justification.
In order to answer the question this Article addresses, it is necessary to take both a historical and philosophical perspective. As intellectual property rights are Western in origin, a Western perspective is by definition taken. I chose the two most representative Western legal systems to do so, namely the European Union (EU) and the United States (US). The philosophical and economic history of the West is compared with that of the Muslim world and some Asian countries, namely China and Japan, as they also represent a very large part of the world.
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