THE PHILOSOPHY OF INTELLECTUAL PROPERTY RIGHTS

There are two fundamental subjects in the philosophy of intellectual property rights: conceptualization and justification of intellectual property rights. There is a difference between philosophy of IP rights and philosophy of IP Law. While the first one is a first- order knowledge the second one is a second-order one. It means that the philosophy of intellectual property rights is on some philosophical argumentations about a conventional fact called»IP rights «. But the argumentations of philosophy of IP law - if any - are about an existent discipline called» IP Law «. Because there is no remarkable difference between the two diciplines (i. e. the law and IP Law), their both methodologies are still the same and so we dont have a philosophy of IP Law independent from philosophy of Law. But there is a philisiphical tendency about the nature of IP rights and the ethical justification on the necessity of the acceptence of IP rights in a legal system. There are three difficulties in Iranian legal history on the recognition of the concept of IP rights. 1. The conventional abstract property differs from the concrete property. The statement» This house is for A «differs from the statement» This sweetness is for suger «or» the Unirverse is for God«. these two concepts are occasionally mixed in the traditional jurisprudence and so the IP rights appeard more fictitious and metaphorical. 2. Traditional law reduces the propety to the notion of physical appropriation and because one can not appropriate the IP rights, it is said that this kind of ownership is impossible. 3. According to the Art. 338 of Iranian civil code, the thing which is transfered by sale should be an objective and physical one. so the transfering of IP property confronts with a legal problem. Three theories on the justification of IP rights are: 1. IP rights as natural rights: in Lockean theorem property is a thing plus a human work. Ideas are produced by intellectual works and so became the property of the producer. 2. IP rights as personality: in Hegel's view, property is the instrument for subjective freedem of human beinges and who expresses his expectations in a litteral work, renders its owner. 3. IP rights as priviledge: Peter Drahos following Marx recognises the IP as a priviledge not a right; a priveledge which can be withheld by the legislatures.