Право интеллектуальной собственности
Юридические дисциплины
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Gosseries A., Strowel A., Marciano A. (eds.) Intellectual Property and Theories of Justice
Издательство Palgrave Macmillan, 2008, -291 pp.

Intellectual property (IP) affects many dimensions of our daily lives. It covers four types of rights: patents, copyright (or ‘droit d’auteur’), trade marks and trade secrets. Here, we focus on copyright and patents only. As Varian (2005, pp. 124–5) puts it, IP rights can be analysed through three of the key variables constitutive of their scope. The first is height, which is the standard of novelty required to be eligible for protection. The patent regime is more demanding than the copyright regime in this respect, for it requires ‘novelty’, ‘inventiveness’ (‘non-obviousness’ in the US) and the possibility of an industrial application (‘usefulness’ in the US). The second dimension is width, that is, ‘the breadth of coverage that the protection offers’ (Varian, 2005, p. 125). Copyright offers less protection than patent since it applies to the expression only – not to the use of the ideas – and even allows for some ‘fair use’ (e.g. ‘quotes’ or ‘parody’). Finally, there is the duration of protection. For patents, it is in principle 20 years. For copyright, it was initially 14 years (renewable once) in the 1790 US Copyright Act, but since 1993 (Europe) and 1998 (US) it is granted to the copyright owner for a period extending to 70 years beyond the creator’s death (Varian, 2005, p. 122).
Why analyse IP rights through the prism of theories of justice? This conce is not new. Immanuel Kant, for example, wrote in the eighteenth century on moral questions related to the reproduction of books (see Kant, 1995); and we are still in the middle of what Boyle (2003) calls the ‘second enclosure’ (the first enclosure consisting of gradually fencing off the arable commons starting in the fifteenth century). For what we are facing today is the gradual proprietarisation of our informational commons. Consider the current debates as to whether we should grant patents on living organisms such as the Leder’s oncomouse (Kevles, 2002), on surgical procedures (Garris, 1996; Wear et al., 1998) or on sports methods (such as some athletic moves) (see Kunstadt et al., 1996; Bambauer, 2005). In the same vein, should copyright protection apply to software or choreographic works (Van Camp, 1994)? Coincidental to this gradual informational enclosure, there is the ‘free’ software movement which is moving in the opposite direction.1 Clearly, the simultaneous development of these two trends – the second enclosure and free software – calls for a normative analysis. And besides these practical reasons, the very object of IP, with its non-rivalry and non-excludability dimensions, presents theoretical challenges of its own.
We thus need to address questions such as: Is the exclusion of the poor from access to patented drugs not in clear violation of basic human rights? Does peer-to-peer file exchange amount to an unacceptable form of free riding? This requires a good command of the technicalities of IP tools and their legal and economic dimensions, as well as a full grasp of philosophical theories of justice. Let us not misunderstand, however, what is meant here by conces of justice. Changes in IP status raise two broad types of conce, associated with worries fed respectively by a given conception of the good life and a specific theory of justice. Consider by analogy an extension of the market by decriminalising prostitution. Some people will be worried that it will affect the way in which we see our affective and sexual relationships. Others will wonder whether women who engage in such activities are not being unjustly treated by those who either hire their services or are their so-called ‘protectors’. There is, of course, room for disagreement at both levels (see Sandel, 1998; Boyle, 2003, p. 35). What matters is that ‘good life’ and ‘justice’ are both features in the IP debate. We will focus only on the latter in this book. This does not imply, however, that the former is of little importance when it comes to looking at, for example, the ethics of hackers, the flourishing of a culture specific to free software developers or the way in which readers conceive of the nature of collective knowledge.

Introduction
How (Un)fair is Intellectual Property?
Part I General Approaches
Lockean Justifications of Intellectual Property
Are Rawlsians Entitled to Monopoly Rights?
Access to vs. Exclusion from Knowledge: Intellectual Property, Efficiency and Social Justice
The Incentives Argument for Intellectual Property Protection
When Property is Something Else: Understanding Intellectual Property through the Lens of Regulatory Justice
Liberty and the Rejection of Strong Intellectual Property Rights
Part II Specific Issues
Is P2P Sharing of MP3 Files an Objectionable Form of Free Riding?
Copyright and Freedom of Expression: A Philosophical Map
Free Software, Proprietary Software and Linguistic Justice
How Efficient is the Patent System? A General Appraisal and an Application to the Pharmaceutical Sector
Patents on Drugs – the Wrong Prescription?
Is It Ethical To Patent Human Genes?
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