Compulsory Licensing in the light of John Locke’s Concept of Property and Utilitarian Concept of Bentham Introduction:-
Is it fair to grant compulsory licensing to any person of any persons’ intellectual property for which he is demanding higher price? Intellectual Property is “jura in re propria”. It is a valuable intangible property which vests on the owner in the form of artistic, literary, dramatic, musical, cinematographic works and sound recording. It also exists in any new creation which has any utility and industrial application; i.e, to any invention. These rights are protected because they are the brain child of a person and the fruits of his labour. They are worthy of protection by national laws and international laws because of the fact that the civilised nations recognises the value of such creations and are highly prized. Is it necessary to protect “Intellectual Property”?
“When a man by the exertion of his rational powers has produced an original work, he seems to have clearly a right to dispose of that identical work as he pleases and any attempt to vary the disposition he has made of it appears to be an invasion of that right.” If it is viewed in the perspective of John Locke, it can be understood that such a property should receive the protection of law simply because of the fact that they are the output of a man’s hard effort. As Locke believed that a person acquires property in those things which were formerly un-owned or un-known and or with which he or she mixes something which his or her owns, which may be in the form of labour. The private property of one’s labour overcomes the common property upon which one labours because almost all of the value of the finished product is the result of the labour required to produce it and hence it is to be protected. Thus, what Locke has advocated is that every person has a natural right to claim protection for his work or labour which is the result of his or her effort. Any appropriation of his or her work is an unjust act. Even the utilitarian believes that a society can be a progressive society which preserves and protects the private property of each individual. The reason and the concept behind this is that it gives incentive to the holder of the property to invest time, labour and skill for developing new ideas or creating new things for maximizing his profit, which in other way leads to public welfare. Copyright is a legal protection of a work given to an author or the owner of the original work. Similarly, Patent is the recognition of a man’s hard labour in creating a new, useful product or a process having industrial application at present or in future. The object of these two laws is to preserve the efforts of the individuals by rewarding them in such a way that others cannot reproduce the same work for certain term. Thus, they in other way give monopoly rights to the individuals so that they can enjoy benefits from their work before they actually fall within the public domain. This exclusive right is the negative right which prevents others from adapting, reproducing and copying the original work. Thus, it can be said that these law are in full consonance of the thought put forwarded by John Locke. Even Rothbard states it thus: "that no man or group of men may aggress against the person or property of anyone else." In the light of the law of property which has evolved through-out the ages, it can be seen that the property of an individual is his right in rem; i.e., it is available to an individual against the world at large. No one can claim any benefit in one’s property unless authorised to do so by the person holding the property. As Ayn Rand puts it somewhat differently that "the right to life is the source of all rights and the right to property is their only implementation. Without property rights, no other rights are possible." Compulsory Licensing:-
Modern countries have provided for compulsory licensing particularly in those fields where...
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