Reflections on the Cultural Foundations of IPRs

The purpose of this paper is to further stimulate discussion about the foundations of IPRs, be they cultural or not. This is of course as interesting as it is challenging in itself, but such discussions may also in the end be useful in the turmoil of present debates about various IPR issues. The paper is in no small measure speculative, attempting to involve various relevant but perhaps so far ignorant disciplines. As such, the paper is a cross-disciplinary voyage in a vast deep sea with limited equipment and admittedly adventurous. It will first travel through various contexts, searching for IP notions, then give a brief history account of IP developments and finally an account of notions in the history of ideas, brief as well.

For the discussion that follows we can think of intellectual property in broad terms as property directly related to the creativity, knowledge and identity of an individual. Intellectual property of a collectivity of individuals may in turn be broadly thought of as property directly related to the creativity, knowledge and identity of that collectivity. The collectivity may be a legal person, such as a company or a nation, or it may be a less well-defined group, such as a team or a community. The basic notion of property in general is to have the right of way to exclude others at will from using and/or deriving benefits from the underlying resource, thereby exercising some semblance of control. Thus, ownership is associated with the right to at least partially retain or regain control over the benefits derivable from a resource. At the same time a sense of ownership may derive from a sense of control, deriving in turn from possession of some resource. If the resource is scarce and competition about it accrues, priority has to be established, usually on the grounds of first and sole possession when it comes to physical property. As will be discussed, this presents fundamental problems when applied to immaterial things. What constitutes the basic notions of property and the fundamentals of rights, and how these notions have evolved over time in various societies could be further elaborated at length.