Kur, Annette; Schovsbo, Jens --- "Expropriation or Fair Game for All? The Gradual Dismantling of the IP Exclusivity Paradigm" [2011] ELECD 210; in Kur, Annette (ed), "Intellectual Property Rights in a Fair World Trade System" (Edward Elgar Publishing, 2011)

Book Title: Intellectual Property Rights in a Fair World Trade System

Editor(s): Kur, Annette

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849800099

Section: Chapter 9

Section Title: Expropriation or Fair Game for All? The Gradual Dismantling of the IP Exclusivity Paradigm

Author(s): Kur, Annette; Schovsbo, Jens

Number of pages: 45

Extract:

9. Expropriation or fair game for all?
The gradual dismantling of the IP
exclusivity paradigm
Annette Kur and Jens Schovsbo*

1. INTRODUCTION

By characterising intellectual property rights (IPR) as exclusive rights, it is
submitted by definition that they confer on their proprietor the entitlement
to exclude others from making unauthorised use of the protected subject
matter. As it is also widely recognised that IPR enjoy protection under the
title of property in the meaning of constitutional laws and even human
rights instruments, any encroachment on that entitlement may appear to
be a form of expropriation. On the other hand, it is also acknowledged
that for many reasons, it would be basically flawed to posit that IPR and
tangible property should be treated equally in all respects. Furthermore, in
spite of their canonisation as a special type of human rights, and irrespec-
tive of the strong flavour of personal rights permeating copyright law, IPR
in the first place have been created to "do a job" ­ namely to foster creativ-
ity and innovation. This means that exclusivity should be the dominant
regulatory model only where and to the extent that other, non-exclusive
schemes cannot achieve the same or even better results, and/or generate
more beneficial effects for society as a whole. This does not necessarily
mean that access or use must be free whenever exclusivity entails sub-
optimal effects. Instead, the proprietary element may persist in the sense
that the user is obliged to pay for the privilege of unrestricted ...