INTRODUCTION

Since the publication of John Locke's Second Treatise on Government, individual rights to property, and in particular private property, have become one of the philosophical tenets of rights theory and one of the foundations for the justification for Western-style free enterprise. Out of a Lockean notion of property, Western thinking has developed the idea of intellectual property rights, proprietary rights to what one invents, writes, paints, composes, or creates.

Despite their origins in a strong rights tradition, intellectual property (IP) rights are now being challenged across the globe in a number of areas. These challenges include:

• copying music and other works of art without permission;

• “knock-off” copies of designer products;

• generic brands of well-known drugs and other products;

• copying products by reverse engineering;

• challenges to gene patenting and genetic engineering;

• conflicting ownership claims to products developed from tacit knowledge of indigenous populations;

• copying patented drugs without permission or license – for national security, in health emergencies, in life-threatening epidemics, to reduce costs to end-users, or simply to make money.

Focusing on the last challenge, in this essay we shall develop four points. We will analyze two arguments defending intellectual property: a standard rights-based defense and utilitarian justifications. We will outline some of the challenges to these ideas that raise questions concerning ownership, competition, and sharing. In the first section, we shall present another way to think about intellectual property that both challenges and preserves that tradition.