Are intellectual property rights compatible with Rawlsian principles of justice?

• Published in: Ethics and information technology Vol. 14; no. 2; pp. 109 - 121
• Main Author: Murphy, Darryl J.
• Format: Journal Article
• Language: English
• Published: Dordrecht Springer Netherlands 01.06.2012; Springer; Springer Nature B.V
• Subjects: Compatibility; Computer Science; Copyright; Copyrights; Ethics; Exact sciences and technology; Information and communication sciences; Information science. Documentation; Information systems; Innovation/Technology Management; Intellectual property; Justice; Legal aspects : intellectual property, producer responsability; Legal aspects : intellectual property, producer responsability. Ethics; Legislation; Library and information science. General aspects; Library Science; Management of Computing and Information Systems; Ontology; Original Paper; Piracy; Property rights; Sciences and techniques of general use; Social justice; Stratification; Studies; Trademarks; User Interfaces and Human Computer Interaction; Copyright; Patent; Intellectual property rights; Rawls; Principles of justice; Right of property; Justice; Patents; Product; Property right; Intellectual property; Legal aspect; Paper
• ISSN: 1388-1957; 1572-8439
• DOI: 10.1007/s10676-012-9288-8

This paper argues that intellectual property rights are incompatible with Rawls’s principles of justice. This conclusion is based upon an analysis of the social stratification that emerges as a result of the patent mechanism which defines a marginalized group and ensure that its members remain alienated from the rights, benefits, and freedoms afforded by the patent product. This stratification is further complicated, so I argue, by the copyright mechanism that restricts and redistributes those rights already distributed by means of the patent mechanism. I argue that the positions of privilege established through both the patent and the copyright mechanisms are positions that do not “allow the most extensive liberty compatible with a like liberty for all.” They do not “benefit the least advantaged.” Nor are they “open to all under conditions of fair equality of opportunity.” In making this argument I critically assess the utilitarian defense of intellectual property rights and find it insufficient to respond to the injustices manifest in our current arrangement for the protection of intellectual property rights.