THE PHILOSOPHY OF INTELLECTUAL PROPERTY RIGHTS

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JAFARI TABAR H.

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Journal: PRIVATE LAW STUDIES Year:2007 | Volume:37 | Issue:2 Page(s): 41-82

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Information Journal Paper

Title

THE PHILOSOPHY OF INTELLECTUAL PROPERTY RIGHTS

Author(s)

JAFARI TABAR H. | Issue Writer Certificate

Keywords

RIGHTQ2

PRIVILEDGEQ3

POPERTYQ2

APPROPRIATIONQ3

OBJECTQ2

WORKQ2

PERSONALITYQ1

TORTQ2

Abstract

There are two fundamental subjects in the philosophy of intellectual property RIGHTs: conceptualization and justification of intellectual property RIGHTs. There is a difference between philosophy of IP RIGHTs and 'philosophy of IP Law. While the first one is a first- order knowledge the second one is a second-order one. It means that the philosophy of intellectual property RIGHTs is on some philosophical argumentations about a conventional fact called IP "' RIGHTs" But the argumentations of philosophy of IP law - if any –are about an existent discipline called JP Law.. Because there is no remarkable difference between the two disciplines (i.e. the law and IP Law), their both methodologies are still the same and so we don't have a philosophy of IP Law independent from philosophy of Law. But there is a philosophical tendency about the nature of IP RIGHTs and the ethical justification on the necessity of the acceptance of IP RIGHTs in a legal system.There are three difficulties in Iranian legal history on the recognition of the concept of IP RIGHTs.1. The conventional abstract property differs from the concrete property. The statement « This house is for A. differs from the statement «This sweetness is for surgeon or «the Universe is for God. These two concepts are occasionally mixed in the traditional jurisprudence and so the IP RIGHTs appeared more fictitious and metaphorical.2. Traditional law reduces the property to the notion of physical APPROPRIATION and because one can not appropriate the IP RIGHTs, it is said that this kind of ownership is impossible.3. According to the Art. 338 of Iranian civil code, the thing which is transferred by sale should be an OBJECTive and physical one. So the transferring of IP property confronts with a legal problem.Three theories on the justification of IP RIGHTs are:1. IP RIGHTs as natural RIGHTs: in Lockean theorem property is a thing plus a human WORK. Ideas are produced by intellectual WORKs and so became the property of the producer.2. IP RIGHTs as PERSONALITY: in Hegel's view, property is the instrument for subjective freedom of human beings and who expresses his expectations in a literal WORK, renders its owner.3. IP RIGHTs as privilege: Peter Drahos following Marx recognizes the IP as a privilege not a RIGHT; a privilege which can be withheld by the legislatures.

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References

THE HISTORY OF REDUCING THE CONCEPT OF RIGHT FROM JUSTICE TO OWNERSHIP

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APA: Copy

JAFARI TABAR, H.. (2007). THE PHILOSOPHY OF INTELLECTUAL PROPERTY RIGHTS. PRIVATE LAW STUDIES, 37(2), 41-82. SID. https://sid.ir/paper/124929/en

Vancouver: Copy

JAFARI TABAR H.. THE PHILOSOPHY OF INTELLECTUAL PROPERTY RIGHTS. PRIVATE LAW STUDIES[Internet]. 2007;37(2):41-82. Available from: https://sid.ir/paper/124929/en

IEEE: Copy

H. JAFARI TABAR, “THE PHILOSOPHY OF INTELLECTUAL PROPERTY RIGHTS,” PRIVATE LAW STUDIES, vol. 37, no. 2, pp. 41–82, 2007, [Online]. Available: https://sid.ir/paper/124929/en

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