Justificatory Theories

M DU BOIS for Intellectual

PER / Property
PELJ 2018 (21) 1
Viewed through the Constitutional Prism

M Du Bois*

Abstract
Pioneer in peer-reviewed,
open access online law publications In order to determine the extent to which intellectual property
rights should enjoy protection under the constitutional property
Author clause, some of the classical and newer justificatory theories for
property may be employed, including the labour theory, reward
Mikhalien du Bois theory, incentive theory, theory of natural law, spiritual theories,
personality theory, economic theory, and theory of natural
Affiliation monopoly. These theories must be applied in line with the
Constitution of the Republic of South Africa, 1996, keeping in
University of South Africa mind that other fundamental rights must be balanced with the
protection afforded to intellectual property in order to ensure its
Email
[email protected] continued production. It is also important that intellectual
property statutes be developed to promote a thriving intellectual
Date of submission commons.

20 March 2017

Date published
Keywords
16 March 2018
Constitutional property; intellectual property; justificatory
Editor Prof O Fuo
theories; labour theory; reward theory; incentive theory; theory of
natural law; excludability; spiritual theories; personality theory;
How to cite this article economic theory; theory of natural monopoly; intellectual
commons; public domain.
DU BOIS M "Justificatory Theories
for Intellectual Property Viewed
through the Constitutional Prism"
PER / PELJ 2018(21) - DOI ……………………………………………………….
http://dx.doi.org/10.17159/1727-
3781/2018/v21i0a2004

Copyright

DOI
http://dx.doi.org/10.17159/1727-
3781/2018/v21i0a2004
M DU BOIS PER / PELJ 2018 (21) 2

1 Introduction 

An important question that forms part of an analysis of constitutional

property protection for intellectual property rights1 is whether (or rather
when) protection for these interests may be justified. This necessitates an
analysis and discussion of the reasons why intellectual property rights2 and
unconventional intangible property interests3 should be protected. The
classical property theories and some newer theories appear to justify
protection of intellectual property rights, but for some of the unconventional
forms of intangible property interests, other theories could be more relevant
for their justification. For example, traditional knowledge protection may be
better justified by theories of distributive justice.

Intellectual property rights are relations between individuals, as is the case

with other property rights. However, intellectual property law pertains to
rights in abstract objects. It is necessary to ask whether the legal recognition
and protection of intellectual property may be explained and justified by
utilising general property theories or whether a distinctive theory of
intellectual property needs to be developed.4 Intellectual property should be
approached in terms of property rights instead of treating it in terms of the
language of privileges5 and in South African law this appears to be the case:
intellectual property statutes provide property rule-type protection to
intellectual creations and private law respects this position. With the
increasingly important function of intellectual property ownership, the legal


Mikhalien du Bois. LLB LLD (Stellenbosch University). Associate Professor:
Department of Mercantile Law, Unisa, South Africa. E-mail: [email protected].
This article was presented at the Association for Law, Property, and Society's 6th
Annual Meeting in May 2015 at the University of Georgia Law School, Athens, USA.
Special thanks to the late Prof AJ van der Walt for enabling my understanding of
property law theories. Thank you to Prof CJ Visser for comments on this article. The
Unisa School of Law Research and Innovation Fund made this visit to the University
of Georgia Law School possible financially.
1 See Du Bois 2012 SA Merc LJ 177-193; Van der Walt and Shay 2014 PELJ 52-85.
2 These rights include but are not limited to patents, copyright, designs and
trademarks. They are protected in terms of property rules under the Patents Act 57
of 1978, Copyright Act 98 of 1978, Designs Act 195 of 1993, and Trade Marks Act
194 of 1993, respectively.
3 These interests may include commercial information, confidential information, trade
secrets, digital copyright, biotechnological products, traditional knowledge,
commercial property, participatory claims and non-proprietary rights.
4 Drahos Philosophy of Intellectual Property 1; Hughes 1988 Geo LJ 288: In
determining whether the law of intellectual property reflects general theories of
property, one should keep in mind what the theory of intellectual property should be,
and determine from that what the law should be.
5 Drahos Philosophy of Intellectual Property 2.
M DU BOIS PER / PELJ 2018 (21) 3

rules are becoming strained.6 The institutions of intellectual property need

to be scrutinised carefully7 and particularly in South African law needs to
conform to the Constitution of the Republic of South Africa, 1996 (the
Constitution). However, the focus should fall on identifying which aspects of
existing intellectual property law are supported (in varying degrees) by the
existing theories, and which have shortcomings when viewed through the
theories.8

The nonexclusive character of intellectual property objects and the

restriction of the free flow of information pose challenges to the justification
of intellectual property rights.9

These objects are nonexclusive: they can be at many places at once and are
not consumed by their use. The marginal cost of providing an intellectual
object to an additional user is zero, and though there are communications
costs, modern technologies can easily make an intellectual property object
unlimitedly available at very low cost.10

The nonexclusive character of intellectual property characterises it as a

physically non-excludable resource.11 It may still become legally excludable
if the requirements in applicable legislation are met by the creator. Where
such protection is not utilised, the intellectual creation would also become
legally non-excludable with no subsequent available property protection.

Sharing intellectual property objects does not prevent or impair the personal
use of their creator, but prevents the creator from exclusive financial
benefit.12 The purpose of a justification of intellectual property is to explain
why one person should have "the exclusive right to possess and use
something which all people could possess and use concurrently". 13
Exclusive use is not required for personal use in the context of intellectual
property as it is with tangible property. This must be kept in mind while
discussing the justifications for intellectual property. The fundamental value
that society places on freedom of expression and thought must also be
considered while justifying intellectual property rights, since private property
improves one person's freedom to the detriment of all other persons'

6 Hettinger 1989 Phil & Pub Aff 31-32.

7 See Hettinger 1989 Phil & Pub Aff 32; Drahos Philosophy of Intellectual Property 1.
8 Hughes 1988 Geo LJ 289.
9 Hettinger 1989 Phil & Pub Aff 34-35.
10 Hettinger 1989 Phil & Pub Aff 34.
11 See Gray 1991 Cambridge LJ 268-276 where he coins the term "excludable" and
suggests that this feature is what determines whether a particular interest may be
called "property".
12 Hettinger 1989 Phil & Pub Aff 34-35.
13 Hettinger 1989 Phil & Pub Aff 35.
M DU BOIS PER / PELJ 2018 (21) 4

freedom. Further, restrictions on the free flow of information through the

granting of intellectual property rights may impede the general advancement
of new technologies and knowledge.14

At this point one must remember the difference between property protection
in private law (through intellectual property statutes and the common law)
and property protection in constitutional law (through the constitutional
property clause),15 and also the different purposes served by private law
protection and constitutional law protection. The purpose of property
protection in private law is to get strong property rule-type protection for
private rights against competing private parties.16 Constitutional property
protection provides bill of rights-type protection for private interests against
the state and competing constitutional rights of other private parties.

The South African constitutional property clause not only protects property,
but provides for expropriation and deprivation by the state, although there
are strict requirements that need to be met for such actions to be
constitutionally justifiable. This is important where intellectual property rights
conflict with other rights such as those to the public domain, human dignity,
education, or freedom of expression, and they need to be weighed up during
constitutional interpretation.17 This article does not present a unified
constitutional property theory for intellectual property rights. However, it
does highlight and explain the justificatory theories for property that may be
applied to intellectual property, while taking cognisance of the limitations of
the theories in view of the purpose of the Constitution, and particularly
section 25 (the property clause). In line with André van der Walt's descriptive
and normative thesis that the legal protection of property rights does and
should play a 'modest systemic role in the law',18 intellectual property rights
have taken a back-seat in constitutional jurisprudence where intellectual
property rights had to be interpreted in line with non-property constitutional
rights. For example, in Laugh It Off v South African Breweries19 there had
been a trade mark right that was clearly protectable in terms of trade mark
law, but despite this, the right was trumped by the constitutional right to
freedom of expression. The justificatory theories for intellectual property

14 Hettinger 1989 Phil & Pub Aff 35-36; Van der Walt and Du Bois 2013 Stell LR 31-54.
15 Section 25 of the Constitution.
16 See Calabresi and Melamed 1972 Harv L Rev 1089-1128.
17 See Du Bois 2012 SA Merc LJ 177-193.
18 Van der Walt 2014 J L Prop & Soc'y 26-27.
19 Laugh it Off Promotions CC v South African Breweries International (Finance) BV t/a
Sabmark International (Freedom of Expression Institute as Amicus Curiae) 2006 1
SA 144 (CC). For a discussion of the implications of this case, see Du Bois 2012 SA
Merc LJ 188-191.
M DU BOIS PER / PELJ 2018 (21) 5

protection could play a role in assessing the relative value of a particular

intellectual property right as compared to the relative value of the competing
non-property right, in order to find a constitutionally acceptable level of
protection for each right.

South African scholarship has largely neglected the justificatory theories

underpinning intellectual property law. The definitive South African
intellectual property books dedicate no more than a page or two to the
subject.20 This may be attributed to the fact the neither legislation nor
jurisprudence explicitly refers to the reasons why intellectual property
should receive legal protection. Even the Draft Intellectual Property Policy
of the Republic of South Africa (Phase 1) 2017 does not explicitly state the
underpinnings of the protection of intellectual property, although
commendably it does strive to "[advance] a balanced and coordinated
approach to [intellectual property] that regulates [intellectual property rights]
in line with the South African Constitution". It also alludes to "the proverbial
bargain that the patent holder is supposed to strike with society, namely,
disclosure in return for monopoly protection...". In other words it implicitly
relies on the incentive theory, at least for the category of patents.

There are arguments that the fixed term of intellectual property rights (with
the possible exclusion of trademark rights which are perpetual in principle)
makes them fit even better under the justificatory property theories than
other forms of property.21 As justificatory theories for intellectual property,

20 Pistorius "Introduction" 144-145 briefly mentions some broad justifications for

copyright protection (the natural-justice, economic, cultural and social arguments)
and also mentions Biotech Laboratories (Pty) Ltd v Beecham Group Plc 2002 3 All
SA 652 (SCA) 659, a copyright case that alluded to a philosophical underpinning.
Van der Merwe "Introduction" 267 mentions the quid pro quo for the granting of
monopoly rights via a patent, namely full disclosure of the invention (which
corresponds with the incentive theory). Ramsden Guide to Intellectual Property 1-2
mentions immaterial property rights but does not discuss any theoretical
underpinnings for the protection of intellectual property law; Blignaut "Copyright"
mentions the incentive theory underpinning copyright. Grant "Patents" 239 mentions
the quid pro quo involved with patents. Burrell South African Patent and Design Law
1.1 dedicates a few paragraphs to explaining the quid pro quo in the context of patent
law, and at 9.1 explains the quid pro quo in the context of designs. Webster and
Page South African Law of Trade Marks make no mention of any justifications for
protecting trade marks, and nor do any of the other South African intellectual property
law books. Dean Handbook of South African Copyright Law 1.1 refers to the "own
effort" requirement for copyright subsistence, which may allude to the labour theory,
and at 1.2 mentions the reward and incentive theories as the underpinning for
copyright protection as well as for patents and designs.
21 Hughes 1988 Geo LJ 296. On the submission of Proudhon What is Property? 11-12
that "all Property is theft" Hughes 1988 Geo LJ 289-290 suggests that this slogan is
incoherent on a literal reading since "the idea of theft presupposes that someone
else holds legitimate title and that all property must either be justified on labour and
M DU BOIS PER / PELJ 2018 (21) 6

both the labour22 and personality theory have received much criticism. The
personality theory as derived from the works of Kant and Hegel postulates
that "an author's personality, spirit and will cannot be free unless the author
owns his/her work".23 Radin's24 development of the personality theory is
also important. This article discusses these theories and their criticisms, as
well as other alternative and supplementary theories.

One version of the economic theory states that since intellectual property is
made scarce through artificial constraints imposed by a legal framework and
restricts public access to the intellectual work, a justification for intellectual
property rights should be founded on the creation and protection of investor
value.25 Another fairly recent theory is the theory of natural monopoly, 26
which applies criticisms from natural monopoly theory to the intellectual
property system. The intellectual commons is a final consideration in a
discussion of the justifications for intellectual property, but it is not the focus
of this article.27 The purpose of this article is to discuss each theory that may
justify the legal recognition and protection of intellectual property rights as
well as their criticisms. Some preliminary suggestions are also supplied as
to the particular suitability of applying each theory to intellectual property
rights.

/ or personality theories or would constitute theft". Ciro 2005 JILT 2 would add the
economic theory to this list, but maintains that the justifications used for tangible
property cannot apply to intellectual property due to their lack of scarcity (their use
is non-exclusive). Mostert 1987 SALJ 480 views the labour theory as one of the most
important in support of the recognition of intellectual property rights.
22 For example, Ciro 2005 JILT 2 argues that there is no natural right to intellectual
property in the sense that John Locke argued for a labourer's natural property right
to an item that is created with her labour. See also Van der Walt 2014 J L Prop &
Soc'y 34-35, where he highlights the relational rights theory criticism against a
natural rights based justification for property that "it effectively removes contested
questions about the distribution of property and of power from the realm of normative
debate and political contestation".
23 Ciro 2005 JILT 2.
24 Radin 1982 Stan L Rev 957-1015. See Van der Walt 2014 J L Prop & Soc'y 38-39
where he notes that for the personhood theory, property only safeguards
personhood regarding minimum access to property, such as access to medical care
or education. Applied to intellectual property rights, this would imply that existing
patent rights could be limited in the interest of medical care, or existing copyrights in
the interest of education.
25 Ciro 2005 JILT 2.
26 This theory is expounded by Ghosh 2008 U Ill L Rev 1128.
27 For an introduction to the issues surrounding the intellectual commons see Van der
Walt and Du Bois 2013 Stell LR 31-54.
M DU BOIS PER / PELJ 2018 (21) 7

2 The theory of natural law and labour theory

2.1 Introduction

The theory of natural law is derived from the principle that one owns that
which one creates by one's own (intellectual) effort and labour.28 At least for
South African law, Roman law may be a starting point in the development
of a natural-law theory for the recognition of intellectual property.

The first emergence of a natural-law justificatory theory for intellectual

property may be seen in Roman jurists' treatment of specificatio,29 scriptura,
pictura and occupatio.30 In these cases one owner loses ownership of a
thing due to another person's "occupation" of that thing.31 Own work and
value is added in such a way that the original item loses its independence
and ceases to exist as a thing.32 Roman jurists acknowledged that the
labour of one person could increase the value of the resultant thing to the
point where the added value was higher than the original, and this entitled
him to ownership of the new product.33

A first step towards recognising intellectual property on natural-law

principles is evident in the rules of pictura, where the painter, and not the
owner of a tablet upon which such painting was done, became the owner of
the finished work.34

From the seventeenth century onwards, Roman-Dutch law authors

emphasised the importance of writing and the intellectual labour spent to
create the work. The natural-law principle determined ownership for
specificatio, scriptura, pictura and occupatio. In conjunction with eighteenth

28 Mostert 1987 SALJ 480.

29 Specificatio takes place when one person's property is converted by another person
who is not the owner of the original thing. See Badenhorst, Pienaar and Mostert
Silberberg and Schoeman's The Law of Property 156.
30 Occupatio entailed taking occupation of property belonging to no one (res nullius) in
order to acquire ownership. This pertains to a corporeal movable or immovable thing
in the sphere of private law (res in commercio) which is not owned by anyone. This
has to be done with the intention of becoming owner of the thing. See Badenhorst,
Pienaar and Mostert Silberberg and Schoeman's The Law of Property 137.
31 Mostert 1987 SALJ 481-485.
32 See Badenhorst, Pienaar and Mostert Silberberg and Schoeman's The Law of
Property 141-156.
33 Mostert 1987 SALJ 481-483. See Badenhorst, Pienaar and Mostert Silberberg and
Schoeman's The Law of Property 156-159 and sources cited there.
34 Mostert 1987 SALJ 484-485.
M DU BOIS PER / PELJ 2018 (21) 8

century philosophical influences, this express recognition of the natural-law

principle founded modern recognition of intellectual property.35

2.2 Locke's labour theory

Seventeenth century and later legal scholars accorded the natural-law

principles a larger role in recognising intellectual property. John Locke36
justified property on the basis that every person has a property in his own
person, own labour, and works created through own labour. By "mixing"
one's labour with land or other tangible property, a "natural right" to the
property is acquired.37 This principle of acquiring property over one's own
intellectual creations played an important role in the recognition of
intellectual property rights, especially patents and copyright. 38 However,
whether the labour theory can be successfully applied to intellectual
property is an open question.

According to Hettinger39 "[p]erhaps the most powerful institution supporting

property rights is that people are entitled to the fruits of their labor". The
labour theory postulates that the products of a person's own intelligence,
effort and perseverance should belong to that person and to no one else.
The object would not exist but for that person creating it.40

2.3 The revised labour theory

According to Munzer,41 desert based on labour should not be the only

justification for private property rights, even though it is important. An initial
and revised theory based on labour and desert may be identified. In this
context, labour means "the exertion of effort in order to make or physically
appropriate something" and desert "worthiness of some recompense

35 Mostert 1987 SALJ 492-493.

36 Locke Second Treatise of Government ch V para 27.
37 See Ciro 2005 JILT 3.
38 Mostert 1987 SALJ 494-496.
39 Hettinger 1989 Phil & Pub Aff 36.
40 Hettinger 1989 Phil & Pub Aff 37: A problem with this formulation is that where labour
is mixed with something, it may not necessarily be gained, for example mixing one's
tomato juice with the ocean does not gain the ocean (Nozick Anarchy, State, and
Utopia 17). See also Petersen 2008 LT 257-280 where he endorses Locke's labour
theory to justify literary works; Wilson 1994 UCL Juris Rev 233-234 on the application
of the labour theory to DNA patents; Maniatis 2002 IPQ 136-153 on the application
of the labour theory to trademarks.
41 Munzer Theory of Property 254-291.
M DU BOIS PER / PELJ 2018 (21) 9

because of some personal feature or action".42 Munzer43 outlines the labour-

desert theory:

If the background conditions44 exist, then the laborer may use his body to gain
control over something. If, further, there exist the features of the laboring
situation45 and the physical and psychological effects described, 46 then the
laborer is responsible for a product that he does not misuse and over which
his enduring control has no adverse impact on others. If, finally, the evaluative
and normative features are as specified, 47 then recognizing his enduring
control is the most fitting benefit for his labor and does not infringe the rights
of others. Such recognition is the acknowledgement of property rights.

The initial labour theory claims that the labourer would deserve "moral
property rights in the product in virtue of his labor".48

Munzer49 suggests the revised labour theory to make the assumptions of

the initial labour theory more realistic. First, the labourer's property rights
need to be qualified by broader duties arising from the rights of non-
labourers (for example the right to the necessities of life). The assumption
of no waste is also unrealistic and necessitates a power of transfer.50
Examples of such rights of non-labourers are the right to freedom of speech,
education or other political and socio-economic rights.

The assumption that property is justified when there are similar things in
sufficient quantity and quality left for other people and that they lose nothing
by the labourer's acquisition (the enough and as good as left presupposition)
could be made more realistic by relying on the principles of utility and

42 Munzer Theory of Property 256-257.

43 Munzer Theory of Property 259.
44 Munzer Theory of Property 258: The background conditions assume that there is no
society or government, the thing that the labourer hopes to acquire is not owned,
there is a sufficient amount of these things with sufficient quality, and the labourer
has the liberty to use his body for the work required.
45 Munzer Theory of Property 258: These features are that the labourer has no moral
duty to work, the purpose of working is to acquire enduring control over a thing, the
labourer works alone and not for someone, the work done involves physical contact
with the thing, the work does not reflect how the labourer sees himself in relation to
others, and all workers work equally intense and effective.
46 Munzer Theory of Property 258: The physical and psychological effects refer to the
fact that the labourer produces a product and not a service, the product is not wasted,
and others are not adversely affected by the creation or gathering of the product.
47 Munzer Theory of Property 258: These features are that the product is good in a
general sense, that no one besides the labourer benefits from the product, property
rights would not be transferable and would be exclusive, the rights would last
indefinitely, the rights would be the most appropriate benefit for the labourer's work,
and they would not infringe any other persons' rights.
48 Munzer Theory of Property 259.
49 Munzer Theory of Property 266-291.
50 Munzer Theory of Property 267-269.
M DU BOIS PER / PELJ 2018 (21) 10

efficiency; and justice and equality to constrain the acquisition process. So

outside limits on acquisition through an understanding of social complexities
are also necessary.51 The scarcity problem makes it impossible for
acquisition not to change the position of other persons, so exclusive rights
with no expiry date are not supported by the revised labour theory, but rather
restricted property rights.52 Most intellectual property rights are exclusive
(bar the few exceptions provided for in applicable legislation), but for a
limited duration. Although trademark rights are perpetual in principle (they
may be renewed subject to continued use), they very distinctly subscribe to
the use-it-or-lose-it principle. Like other property rights, intellectual property
rights are not absolute and may be limited by socio-economic rights and
other fundamental rights where such rights are more pressing in a given
situation. Intellectual products are not scarce like land, in the sense that
more can be created.

Intellectual property is about creation and does not "use up" resources in
the way that the creation of physical property does. However, information
resources are taken from the intellectual commons in order to create
intellectual products. Once taken from the intellectual commons and
propertised, these resources are no longer available for other persons to
use in future intellectual creations. The revised labour-desert theory holds
that labour may still serve as a prima facie justification for property rights,
but embodied as rights qualified by external restrictions. In terms of South
African law, some of these external restrictions would entail expropriation
and deprivation of property rights based on the need to promote other
human rights.

2.4 Possible application of the labour theory to intellectual property

There are many interpretations of Locke's philosophies about property, but

labour has a relatively small role in the so-called "labour theories of
property". Drahos53 views Locke's writings on property as valuable for
justifying intellectual property rights because it shows that such a natural-
rights justification relies heavily on a concept of community and its
metaphysical scheme.

Locke's philosophy attempts to address the issue that the earth belonged to
"Mankind in common", with individual property posing a problem. Natural
law proclaimed the existence of a commons, but also had to explain private

51 Munzer Theory of Property 269-274.

52 Munzer Theory of Property 274-276.
53 Drahos Philosophy of Intellectual Property 41.
M DU BOIS PER / PELJ 2018 (21) 11

ownership.54 Locke's solution55 was that "every Man has a 'Property' in his
own 'Person'. Where a person mixes his own labour with something which
had previously been in the commons, the thing becomes his property".

Locke56 placed two provisos on this justification: that "enough and as good
[must be] left in the commons for others" and preventing spoilage. The first
proviso means that as long as another's position is not worsened by one's
appropriation of a resource, ownership based on labour is permitted. 57
Some argue that patent law does not pass muster under this proviso since
inventors who independently invent an already patented creation are not
even allowed to use their own inventions.58 The "enough and as good"
proviso describes the commons but also references the natural ceiling on
how much each person can appropriate through labour owing to the limited
capacities of humans.59

The second proviso mandates preventing spoilage: one must not take more
than one is able to use. It may be argued that intellectual property will never
be able to meet this proviso entirely due to the nonexclusive nature of
intellectual property. The relative benefit of products would determine how
wasteful prohibition of its use by third parties would be.60

However, the intellectual property rights granted by statutes do not have the
purpose of granting exclusive use rights, but rather the right to prohibit third
persons from doing certain exclusive acts with the work. An example may
be the copyright in a book which does not grant the exclusive right to read
the book. Anyone who is willing to pay a fee to read a legal copy is allowed
to read it. Only when third persons wish to copy and distribute the book (in
other words to do one or more of the acts that fall within the copyright
owner's sphere of exclusivity), the rights granted by copyright become
relevant. Copyright grants the holder the mainly negative right of preventing
third persons from taking away the remuneration to which the copyright
holder is entitled. In other words, it is not exclusive personal use and

54 Drahos Philosophy of Intellectual Property 42.

55 Locke Second Treatise of Government ch V para 27; Drahos Philosophy of
Intellectual Property 43; Hughes 1988 Geo LJ 297. Locke's discussion begins with
the description of "a state of nature in which goods are held in common through a
grant from God … The individual must convert these goods into private property by
exerting labor upon them. This labor adds value to the goods, if in no other way than
by allowing them to be enjoyed by a human being".
56 Locke Second Treatise of Government ch V para 27.
57 Hettinger 1989 Phil & Pub Aff 44; Drahos Philosophy of Intellectual Property 42-43.
58 Hettinger 1989 Phil & Pub Aff 44.
59 Hughes 1988 Geo LJ 297-298.
60 Hettinger 1989 Phil & Pub Aff 44-45.
M DU BOIS PER / PELJ 2018 (21) 12

enjoyment of the product that is protected by intellectual property rights, but

rather the rights to exploit the product that are reserved for exclusive use by
the intellectual property owner.

These property rights (or at the very least, the statutes provide property rule-
type remedies and private law honours this position) may be justified by the
labour theory without contravening the two provisos. This analysis is
applicable to copyright, patents, designs and trademarks. Since the relative
benefit for third parties from use of trade-mark rights may be viewed as very
low (it is a purely commercial right - and has no benefit such as educational
in the case of copyright or medicinal as in the case with some patents) this
may account for the relatively high excludability of trade-mark rights.

The question of why labour should serve as the justification for ownership
and not, for instance, intention or possession61 takes on a utilitarian form in
Locke's answer:62 just reward for labour is appropriate because it has social
benefits. Locke63 implies that the common stock of mankind is increased by
granting property to people who create things through own labour. "Locke's
overall scheme for property can be viewed as an alloy of the labor and tacit
consent theories".64 However, as long as the new wealth remains the
labourer's property, this does not increase the common stock. This must be
balanced with the risk that free appropriation would discourage the creation
of new wealth.65

One solution to this dilemma would rely on donations from the labourer to
the commons,66 but this would render a well-stocked intellectual commons
a privilege instead of a right. Locke's solution67 is the introduction of the
money economy which makes wealth potentially part of the commons.
Locke assumes three things here: that the individual is able to appropriate
more than what can be used, that the individual will have the motivation to
do so, and that (excepting waste) this is not problematic. Locke also
employs tacit consent to justify his money economy. 68 Locke's general

61 Drahos Philosophy of Intellectual Property 43-44; Hughes 1988 Geo LJ 298

disagrees (on the basis that Locke never refers to possession of one's body as the
basis for property in one's body) with the argument of Epstein 1979 Ga LJ 1227 that
if possession is good enough to establish ownership in one's self, it should also be
good enough to possess external things.
62 Locke Second Treatise of Government ch V para 27.
63 Locke Second Treatise of Government ch V para 27.
64 Hughes 1988 Geo LJ 298.
65 Hughes 1988 Geo LJ 299.
66 Hughes 1988 Geo LJ 299.
67 Locke Second Treatise of Government ch V para 27.
68 See Hughes 1988 Geo LJ 299.
M DU BOIS PER / PELJ 2018 (21) 13

system for property may be viewed as a combination of labour and tacit

consent theories, although the labour theory particularly is considered
unique to Locke.

In his justification of intellectual property rights under Locke's labour theory,

Hughes69 uses three propositions: "first, that the production of ideas
requires a person's labor; second, that these ideas are appropriated from a
'common' which is not significantly devalued by the idea's removal; and
third, that ideas can be propertised without breaching the non-waste
condition".

On the statement that idea production requires labour, the "avoidance" view
of labour, the "value-added" labour theory, and the interaction between
labour and the idea / expression dichotomy70 are relevant in testing the
proposition's validity.

The "avoidance" view advocates rewarding labour with property due to its
unpleasantness: property should be given to motivate people to perform
labour. The creation of ideas is not so pleasant an activity that people would
necessarily choose it above recreation, so this motivation provided by
property rights is also relevant to intellectual products.71

The "value-added" labour theory corresponds with the "just desert"

justification of property: it holds that a labourer deserves a reward for
producing something holding value to others. The creation of social value
deserves reward, not the labour in itself. The idea / expression dichotomy
demonstrates the balancing of the need to reward creators, and free access
to ideas.72 For example, the Copyright Act 98 of 1978 provides that
copyright does not subsist in thoughts, ideas or facts.73

69 Hughes 1988 Geo LJ 300.

70 Hughes 1988 Geo LJ 302-314.
71 Hughes 1988 Geo LJ 302-305.
72 Hughes 1988 Geo LJ 305-314.
73 Section 2(2) of the Copyright Act 98 of 1978 provides that a work must be embodied
in material form; Kalamazoo Division (Pty) Ltd v Gay 1978 2 SA 184 (C); Payen
Components SA Ltd v Bovic Gaskets CC 1994 2 SA 464 (W); Rapid Phase
Entertainment CC v South African Broadcasting Corporation 597 JOC (W); Blignaut
"Copyright" 18-19; Pistorius "Requirements for the Subsistence of Copyright" 164;
Ramsden Guide to Intellectual Property Law 27.
M DU BOIS PER / PELJ 2018 (21) 14

Tully74 and Macpherson75 provide two well-known interpretations of Locke's

work on property.76 Tully's interpretation views Locke's77 philosophy as a
justification of the commons and not the right to private property, while on
Macpherson's interpretation, Locke provides the foundation for the
justification of private property.

Drahos78 identifies two factors that may determine how much weight could
be attributed to labour as a justificatory theory for intellectual property: "a
conception of community; and the relation of that community to the
intellectual commons".

The interpretations of Locke's theory on property may be separated into an

instrumental and a normative interpretation. An instrumental interpretation
postulates that society must reward labour with property in order to get
labour, while a normative interpretation suggests that a reward should be
provided for labour. Either of these interpretations may be used to justify
intellectual property, and such application would be free from a number of
problems that affect tangible property.79 Caution must be taken to place no
undue emphasis on the labour and mixing metaphor in the context of
intellectual property, since the mixing of labour allows persons to
appropriate part of the commons for own use in the context of physical
property, but where intellectual property is concerned, this very act of labour
may prevent the emergence of an intellectual commons.

An example of the influence of natural-law justification for intellectual

property is visible in the 1769 English case of Millar v Taylor,80 where the
court decided that literary property in a published work was recognised by
common law. The recognition and protection of literary property was

74 Tully Discourse on Property 174-176.

75 Macpherson Political Theory of Possessive Individualism 221.
76 Drahos Philosophy of Intellectual Property 44. Locke's text encourages
interpretations that are in conflict.
77 Locke Second Treatise of Government ch V para 27.
78 Drahos Philosophy of Intellectual Property 44. See Van der Walt and Du Bois 2013
Stell LR 31-54.
79 Hughes 1988 Geo LJ 296-297; Drahos Philosophy of Intellectual Property 47-48
agrees that Locke's theories are widely relied on for the justification of intellectual
property, but cautions that Locke did have tangible property in mind at the time of
writing the treatises and too much emphasis is placed on the labour and mixing
metaphor.
80 Millar v Taylor (1976) 4 Burr 2303, 98 ER 201.
M DU BOIS PER / PELJ 2018 (21) 15

founded on the natural-law principle that a person should reap the rewards
of his own ingenuity and labour.81

[Th]e natural law theory, which is justified on the interest of the individual to
enjoy the fruits of his own labour, is still of particular prominence in the
protection of modern-day intellectual property and especially new forms of
intellectual property.82

A more pressing problem with the labour theory as justification for property
is that it does not indicate whether a labourer would be entitled to the total
value of the resulting product or only to the value that his labour has added
to the resulting product.83 While Locke84 would attribute 99 percent of an
object's value to human labour, Hettinger85 questions this division. This
question is also relevant to intellectual property: what part of the value of
inventions, writings and business information may be attributed to the
intellectual labourer? While such products would not exist without the
labour, it does not necessarily follow that the whole value of the creation
may be attributed to the labourer.

Intellectual products are "fundamentally social products"86 since creators

use existing information to create new products. If labour equals natural-
right entitlement to the market value of an intellectual creation, all the
contributors should share this value. Labour does not entitle the last
contributor to the full value, so market value provides limited assistance in
determining the value of a creator's contribution. Market value also depends
on social factors.87 While a natural right may entitle one to personal use and
possession of one's creation, it does not justify entitlement to full market
value. The natural right of a creator to utilise an own creation is distinct from
the exclusive rights (protected by intellectual property) to make and sell
copies of the work. "The 'right' to receive what the market will bear is a
socially created privilege, and not a natural right at all".88

81 Mostert 1987 SALJ 496-497. This would mean that an author's right is not artificially
granted by way of legislation - the legislation is merely supplementary to the natural
law right of the author. Natural-law theory is not the only theory used in South African
modern-day law to justify intellectual property, the reward and incentive theories also
had an influence. See also Rose Authors and Owners in general on the history of
copyright in the England, which is also applicable to South African copyright law,
since South African statutes are based on English statutes.
82 Mostert 1987 SALJ 500.
83 Hettinger 1989 Phil & Pub Aff 37.
84 Locke Second Treatise of Government ch V para 40.
85 Hettinger 1989 Phil & Pub Aff 37.
86 Hettinger 1989 Phil & Pub Aff 38.
87 Hettinger 1989 Phil & Pub Aff 36-37.
88 Hettinger 1989 Phil & Pub Aff 39-40.
M DU BOIS PER / PELJ 2018 (21) 16

A theoretical approach viewing the state as an invention, but not individual

rights - mandating the state to protect but not interfere89 - could lead to the
undesirable argument that intellectual property rights should be held in
perpetuity.90 Any statutory introductions such as a fixed term for intellectual
property rights or compulsory licenses would be viewed as "theft". Such
statutes are allowed in South African law as long as the state complies with
the provisions for deprivation and expropriation as set out in the property
clause. Even on this radical view, one would have to keep in mind that the
state also has obligations to protect other individual rights (for example life,
health, and education) and that the protection of the different rights must be
balanced. The historical tradition of natural property rights does not
establish the sanctity of property rights; they remain subject to regulation (in
line with the purposes of natural law).91 Locke's writings cannot serve as a
basis for justifying unregulatable intellectual property rights, since the labour
mixing metaphor generates too many uncertainties and problems once it is
stripped of its metaphysical context.92 It may serve to justify intellectual
property rights that still require to be balanced with public interest in the
intellectual commons and other fundamental rights.

2.5 The intersection between excludability and the labour theory

Excludability is a notion developed by Gray93 to explain when a particular

interest may be described as property. The question whether a particular
interests may be termed property hinges on whether the interest may be
deemed "excludable". "The notion of excludability … imports a hidden
structure of rules which critically define the legal phenomenon of private
property."94 A resource may be deemed non-excludable based on physical,
legal and moral considerations. A non-excludable resource lies forever
outside the field of private property, remaining in the commons.

Physical non-excludability refers to a situation where it is impossible or

impractical to prevent strangers from accessing the benefits of a resource
as is.95 Victoria Park Racing v Taylor96 provides such an example where
purely physical reasons prevented exclusion.

89 Nozick Anarchy, State, and Utopia 174-178.

90 Drahos Philosophy of Intellectual Property 53.
91 Drahos Philosophy of Intellectual Property 53 - support found in Locke Second
Treatise of Government ch VIII para 120.
92 Drahos Philosophy of Intellectual Property 54.
93 Gray 1991 Cambridge LJ 268-276.
94 Gray 1991 Cambridge LJ 269.
95 Gray 1991 Cambridge LJ 269.
96 Victoria Park Racing v Taylor (1937) 58 CLR 479.
M DU BOIS PER / PELJ 2018 (21) 17

Ultimately the risk of non-excludable benefit must rest with the plaintiff, and if
the plaintiff fails, by such physical means as are at his disposal, to prevent
unconsented visual intrusion into his land, the particular resource at stake –
the 'spectacle' – must be deemed non-excludable. No one can claim 'property'
in a resource in relation to which it is physically unrealistic to control,
consistently over prolonged periods, the access of strangers. 97

Legal non-excludability refers to situations where the owner of a resource

fails to use the available legal protection for such resource. Gray explicitly
mentions the adoption of a particular regime of intellectual property as an
example.98 Such example in South African law would be the amendment of
intellectual property statutes99 to include the protection of traditional
knowledge resources. If the holders of traditional knowledge then make no
effort to utilise the available legislation, a particular product of traditional
knowledge would be deemed legally non-excludable.

Morally non-excludable resources are

… simply perceived to be so central or intrinsic to constructive human

coexistence that it would be severely anti-social that these resources should
be removed from the commons. To propertise resources of such social vitality
is contra bonos mores: the resources in question are non-excludable because
it is widely recognised that undesirable or intolerable consequences would
flow from allowing any one person or group of persons to control access to
the benefits which they confer. Following such an appropriation, there would
not, in Locke's well known phrase, be 'enough and as good left in the common
for others' … It is in the definition of moral non-excludables that the law of
property most closely approaches the law of human rights. 100

Certain freedoms of speech, belief, association, assembly and movement

are frequently viewed as values higher than the property concept, and moral
exclusion recognises the superiority of such claims above "property" claims:
"Here emerges again the important point that property rights are merely
prima facie rights which may be abridged or overridden by other moral
concerns".101

2.6 Conclusions on the labour theory and intellectual property

rights

In determining the extent to which a natural rights or labour theory of

property may be relied on to justify intellectual property rights, the
interpretation used is extremely important. The protection of intellectual

97 Gray 1991 Cambridge LJ 270.

98 Gray 1991 Cambridge LJ 273.
99 Intellectual Property Laws Amendment Act 28 of 2013.
100 Gray 1991 Cambridge LJ 280-281.
101 Gray 1991 Cambridge LJ 282-283.
M DU BOIS PER / PELJ 2018 (21) 18

property rights (patents, works of copyright, registered designs and

trademarks) may be justified by the labour theory. Every category of
intellectual creation comes into existence through labour, therefore the
labour theory remains one of the important justifications for intellectual
property. The labour theory may have to be interpreted in such a way as to
incorporate the personality theories. The labour theory does not justify
unlimited, unregulatable property rights, since the labour theory never
intended to justify unlimited or unfettered rights.

Gray's102 analysis of excludability as an indicator of when a particular

resource receives property protection is important to intellectual property
(patents, works of copyright, registered designs, trademarks and rights
protected in terms of unlawful competition) since each category is created
by legislation or protected in terms of common law. Provided the creator of
an intellectual work utilises the legal protection, the work will be legally
excludable and as such enjoy property protection (subject to limitations).
Some intellectual resources will not be protected as property, but remain in
the intellectual commons since they are deemed morally non-excludable,
for example materials that are excluded from patentability.103

Where a particular resource enjoys no legal protection yet and it may be

determined that there is no ground for moral non-excludability, an argument
may still be made for such a resource to receive property protection (via a
legislative amendment) based on the labour theory.

Biotechnological products may be justified by the labour theory. Although

some biotechnological products are legally excludable since they are
protected under patent law, some forms of biotechnological products are
not patentable; which may be because they are morally non-excludable
since the particular information must remain in the commons based on
fundamental rights such as privacy and bodily integrity. 104

102 Gray 1991 Cambridge LJ 268-276.

103 Section 25(1)(a)-(g) of the Patents Act 57 of 1978 excludes the following from
patentability: discoveries; scientific theories; mathematical methods; literary,
dramatic and/or artistic works; schemes, rules, methods of performing mental acts,
playing games or doing business; computer programs; and presentation of
information. S 25(4)(a) prevents the patenting of inventions that would encourage
offensive or immoral behaviour. S 25(4)(b) prevents the patenting of varieties of
plants, animals, or biological methods for their production. Medical methods of
treatment (s 25(11)); inventions contrary to natural laws (s 36(1)(a)); and nuclear
energy and material, and inventions contrary to law (s 36(2)) are also largely
prevented.
104 For example s 25(4)(b) of the Patents Act 57 of 1978 prevents the patenting of
varieties of plants, animals, or biological methods for their production.
M DU BOIS PER / PELJ 2018 (21) 19

As evidenced by the South African process to include traditional knowledge

as a form of intellectual property,105 traditional knowledge is a particularly
troublesome resource. Without specific legislation protecting traditional
knowledge as the property of the traditional holders, only the last person
who contributes to an intellectual creation based on traditional knowledge is
rewarded. When a pharmaceutical company invents a medicine based on
traditional knowledge of a plant with medicinal properties, only the company
is awarded a patent. The traditional community holding the knowledge is not
rewarded. The labour theory, as with most of the general property theories,
provides inadequate justification for the protection of traditional knowledge.
Stronger justification could be found in theories of distributive justice or
human rights.

3 The reward theory

3.1 Introduction

The reward theory advocates rewarding individuals not only for their own
labour, but for the societal benefit of their effort (creative effort – in the
context of intellectual property).106 The creator receives an exclusive
intellectual property right as reward for the creative endeavours. The
resource is legally excludable because legislation creates the possibility for
the creators of intellectual products to invoke legal protection for these
products, provided that the requirements are met as stipulated for each
category. Legislation mostly provides explicitly for morally non-excludable
resources. For example, the principle of "no copyright in ideas" is based on
the concept that the resource must stay in the intellectual commons for
utilisation by future creators.

3.2 Possible application of the reward theory to intellectual property

Society rewards inventors and writers in the form of a legal right to exclude
other persons from certain forms of use of the work for making the works
publicly available. Where intellectual property encourages disclosure of
works that would otherwise remain secret, intellectual property rights
(particularly patents, works of copyright and registered designs) enhance
free flow of information. By contrast, trade secret requirements promote
secrecy and restrict information dissemination. An important requirement is

105 Intellectual Property Laws Amendment Act 28 of 2013; Harms 2009 THRHR 175-
191 explains some of the difficulties experienced with the process and the
amendments.
106 Mostert 1987 SALJ 500; Hughes 1988 Geo LJ 287-366.
M DU BOIS PER / PELJ 2018 (21) 20

that the information must not be widely known.107 On this interpretation, the
reward theory justifies patents, copyright works and designs, but not trade
secrets.

The desert theory is another variation on the reward theory: a labourer

deserves to benefit from his labour. This theory does not indicate what the
labourer would be entitled to, and a property right is not the only possible
reward – it could also take the form of "fees, awards, acknowledgement,
gratitude, praise, security, power, status and publicly financed support".108

Where a right's value is not proportionate to the effort and labour spent, the
most fitting reward may not necessarily be a property right. One may not
necessarily be entitled to the full value produced by the labour, since outside
factors such as luck may inflate the value.109 According to Rawls,110 even
one's capability to expend effort is such an outside factor, which makes
value a morally impermissible criterion in determining distribution.
Proportionality is an important consideration in determining the appropriate
reward, since intellectual property rights may earn the owner much more
value or benefits than the initial expenditure of the intellectual product's
creation.111

Munzer's version of the "labour-desert" theory combines the labour and

desert theories.112 The initial theory underwrites "a prima facie justification
… for a set of private-property rights in a version of the state of nature" while
the revised theory supports such justification "for a somewhat different set
of private-property rights in a modern society".113 While desert still plays a
role in the revised labour-desert theory, it may be supplemented and even
trumped by utility and efficiency, and justice and equality, respectively. 114

It is possible to do comparative assessments of desert claims based on

labour if the relevant features for a worker's performance assessment may
be identified in order to determine a suitable compensation. Some of these
features may include "effort, ability, persistence, industriousness, luck, time
spent, achievement, the difficulty, unpleasantness, or danger of the work,
and the working conditions" as well as "the responsibility, leadership, or

107 Hettinger 1989 Phil & Pub Aff 36.

108 Hettinger 1989 Phil & Pub Aff 41.
109 Hettinger 1989 Phil & Pub Aff 42.
110 Rawls Theory of Justice 104.
111 Hettinger 1989 Phil & Pub Aff 43.
112 Munzer Theory of Property 254-291.
113 Munzer Theory of Property 255.
114 Munzer Theory of Property 289-291.
M DU BOIS PER / PELJ 2018 (21) 21

motivating capacity displayed by one worker in relation to others". Although

this approach guides in generating relative values for specific kinds of
labour, it discloses no absolute values, "inherent worth" of labour, or a "just
price" for labour.115

3.3 Conclusions on the reward theory and intellectual property

rights

Where the dissemination of information is promoted by the grant of

intellectual property rights, the reward theory seems appropriate. Patent
rights, copyright and registered design rights seem to meet this requirement.
Trade-mark rights seem to create no benefit for society except perhaps the
relatively minor benefit of preventing confusion between the product or
service covered by a trade mark and other (possibly inferior) products.
Similar to the labour theory's shortcomings, this theory also gives no
indication what form the reward should take or even whether it needs be
property right-based.

For trade secrets and confidential information, the requirement is that the
information not be made known - accordingly the reward theory does not
apply. Digital copyright may also be justified by the reward theory even
though it is protected by contract in addition to the copyright protection
afforded. Biotechnological products that are not liable to remain in the public
domain on conceptual grounds may be protected under patent law and as
such these rights may be justified by the reward theory.

Historically, traditional communities received no reward for making their

traditional knowledge known. A person who registered a patent based on
traditional knowledge would receive the full reward, not the original holders
of the knowledge. The application of the reward theory is distinctly limited
for traditional knowledge rights claimed by indigenous groups. The original
creators of the knowledge might deserve a reward, but they are no longer
alive and their remote descendants would not necessarily deserve the same
reward.116 Accordingly, the reward theory plays at best a limited role in the
protection of traditional knowledge.

115 Munzer Theory of Property 290.

116 Munzer and Raustiala 2009 Cardozo Arts & Ent LJ 59-60.
M DU BOIS PER / PELJ 2018 (21) 22

4 The incentive theory

4.1 Introduction

The incentive theory builds on society's interest in intellectual property

works, holding that legal protection for intellectual works serves as an
incentive for the production of more intellectual works that will ultimately
benefit society.117 The incentive theory advocates promoting the creation of
valuable intellectual works by granting property rights in such works since
copyright, patent, and trade secret property protection provide the only
adequate incentives for the creation of a socially optimal output of
intellectual products.118

4.2 Application of the incentive theory to intellectual property

The focus of the incentive-based theory falls on users of intellectual property

- the grant of property rights to creators is merely a mechanism ensuring
future production of intellectual creations. The unintended consequence is
that the very mechanism ensuring the production of intellectual creations
also restricts availability of current creations.119 It may be better to find an
equally strong incentive that does not restrict access in this way.
Government support for intellectual creations and public ownership would
be one such alternative.120 If intellectual property decreases access to
products more than it increases production of new products, the goal may
be better attained by a shorter term for patents and copyright, and
eliminating the category of trade secrets. Patents and trade secrets could
be used for monopoly purposes instead of incentive purposes, as intended.
For these reasons the incentive theory may not justify the institution of
intellectual property (as is) as well as it may seem.121

Intellectual property law is intertwined with talk about incentives. 122 The
intellectual property grant is variously viewed as a reward for making a

117 Mostert 1987 SALJ 500; Hettinger 1989 Phil & Pub Aff 47: this utilitarian argument
based on incentives is the strongest and most widely utilised justification for patents,
copyright and trade secrets.
118 Hettinger 1989 Phil & Pub Aff 47; the Constitution of the United States of America
Article I Section 8 Clause 8 (the so-called Intellectual Property Clause) has
specifically taken up the incentive theory in the context of patents and copyright,
providing that intellectual property rights are granted "to promote the progress of
science and the useful arts".
119 Hettinger 1989 Phil & Pub Aff 48.
120 Hettinger 1989 Phil & Pub Aff 48-49; Intellectual Property Rights from Publicly
Financed Research and Development Act 51 of 2008.
121 Hettinger 1989 Phil & Pub Aff 49-50.
122 Ghosh 2008 U Ill L Rev 1130.
M DU BOIS PER / PELJ 2018 (21) 23

creative work public; a quid pro quo and as such an exclusive right in
exchange for making new works available; and even natural rights theories
base the rights on the encouragement of creative activities. The incentive
theory predicts little about the structure of intellectual property, holding only
that protection should be as strong as possible to create maximum incentive
(bar a few exceptions introduced by way of afterthought).123

The incentive theory is based on the premise that intellectual property

protection is necessary to correct market failures which arise from the high
fixed costs of creating and the low marginal cost of distributing the
creation.124 Using the costs incurred during creation to determine intellectual
property rights is problematic because it does not determine how intellectual
property systems should be structured, or policies implemented. Ghosh
suggests a "re-regulation" of intellectual property that would emphasise the
role of allocation and utilisation.125 This is useful to South African law,
especially during a time when the existing statutes are being reviewed and
updated, and it should be done with other fundamental rights in the Bill of
Rights in mind.

4.3 Conclusions on the incentive theory and intellectual property

rights

The incentive theory highlights the difficulties in finding a balance between

an incentive to create and reasonably open access to information. In the
case of patents, copyright and registered designs, an incentive may be
necessary to ensure the creation of these intellectual works that may be
useful to society. However, there are questions whether the intellectual
property system in its current form fulfils the incentive purpose. Trademarks
do not seem to be reliant on incentives granted in the form of intellectual
property rights, since the incentive behind trademark creation is probably to
distinguish products or services in order to promote business.

123 Ghosh 2008 U Ill L Rev 1131; Ghosh 2006 SCRIPT-ed 97-98. See fn 102 on the
exceptions to patentability. Ss 12-19 of the Copyright Act 98 of 1978 provide for
exceptions, for example s 12(1) which provides for fair dealing. S 10(1)-(17) of the
Trade Marks Act 194 of 1993 state the kinds of trademarks that are not registrable,
for example s 10(12): "a mark which is inherently deceptive or the use of which would
be likely to deceive or cause confusion, be contrary to law, be contra bonos mores,
or be likely to give offence to any class of persons". S 14(6) is an example from the
Designs Act 195 of 1993 excluding spare parts from functional design protection,
arguably for purposes of protecting free market competition.
124 Ghosh 2008 U Ill L Rev 1131-1132.
125 Ghosh 2008 U Ill L Rev 1128.
M DU BOIS PER / PELJ 2018 (21) 24

With confidential information and trade secrets, there is no benefit to the

community because no information is made public. Whether the incentive
theory is useful to justify a particular intangible property interest or not
hinges on its usefulness to society, and whether information is being made
public.

Biotechnological products are valuable to society, and some form of

incentive is necessary to ensure their continued production. They would
only be included if they are not excluded from protection (by reason of moral
non-excludability) in terms of the exclusions in patent law or in light of public
interests such as the public domain or a private interest such as the right to
freedom of expression, privacy or bodily integrity.

For traditional knowledge the incentive theory has even less application
than the reward theory, since incentives in the form of intellectual property
were not necessary for the creation of (existing) traditional knowledge. The
concern with traditional knowledge is to keep unauthorised persons from
exploiting the knowledge.126 A suggestion as to how cultural rights of an
indigenous group may be protected includes

… a claim right to its TK; a power to create rules that bind others in regard to
the copying or reverse-engineering of its TK; a claim-right to receive just
compensation for granting access to its TK; a power to seek and a claim-right
to have a wide range of remedies for others' failure to pay compensation or
obtain informed consent; and lastly powers to modify otherwise applicable
laws of patent and copyright.127

5 Spiritual theories

The personality theory as derived from the writings of Kant128 and Hegel,129
holds that a property right in a creation must be granted before a creator
can be fully in control of their spirit and personality. 130 Hegel's131 writings
aim to "reveal the role that community plays in the evolution of individual
freedom".132 On Drahos'133 interpretation of Hegel's writings on property,
intellectual property may have negative effects on community.

126 Munzer and Raustiala 2009 Cardozo Arts & Ent LJ 73.
127 Munzer and Raustiala 2009 Cardozo Arts & Ent LJ 73.
128 Kant Critique of Practical Reason.
129 Hegel Philosophy of Right para 41-71.
130 See Ciro 2005 JILT 4. See also Maniatis 2002 IPQ 153-166 on the application of the
spiritual theories to trademarks.
131 Hegel Philosophy of Right para 10.
132 Drahos Philosophy of Intellectual Property 73.
133 Drahos Philosophy of Intellectual Property 74.
M DU BOIS PER / PELJ 2018 (21) 25

Property rights and personality may be linked in the case of copyright (which
provides property rule-type protection to literary, artistic and dramatic
works). The link between personality and ownership of the creative work
looks strong in these instances.134 Justifying intellectual property rights that
involve the personality creatively via Hegel's personality theory may be ill-
advised. Contrasting the property theories of Locke and Hegel by reference
to labour and personality may not be the best approach, since Locke's
theory135 approaches property as serving the personality, while Hegel's
theory sees property as the "embodiment of personality".136 Also, Hegel's
theory views individual property ownership as contradictory.137

"Private property can be justified as a means to sovereignty", which means

that to achieve individual autonomy, a person must have dominion over
certain objects.138 When applying this to copyright and patents, one has to
distinguish carefully between the creator's right to use his invention or
copyright work (which is not granted by the intellectual property system) and
the right to prevent others from using the invention or work of copyright in
certain ways (as provided by the intellectual property system). While
preventing a person from using his own invention or work would threaten
his sovereignty, not having the right to exclude others would not necessarily
affect this sovereignty.

A personality justification is often viewed as the most powerful alternative to

a labour theory for the justification of intellectual property: "[P]roperty
provides a unique or especially suitable mechanism for self-actualization,
for personal expression, and for dignity and recognition as an individual
person".139

Radin's140 "personhood perspective" holds that in order to be a person, one

has to have control over certain resources in the external environment, and
the control must be fulfilled by property rights. Whether an (intellectual)
property interest may be justified by the personality theory depends on how
central a particular interest is to the fulfilment of personhood.141 This

134 Drahos Philosophy of Intellectual Property 74-75.

135 Locke Second Treatise of Government ch V.
136 Hegel Philosophy of Right para 51.
137 Drahos Philosophy of Intellectual Property 75.
138 Hettinger 1989 Phil & Pub Aff 45.
139 Hughes 1988 Geo LJ 330.
140 Radin 1982 Stan L Rev 957-1015.
141 Radin 1982 Stan L Rev 959-960: Certain items of property are closer to personhood,
for example a wedding ring or a house. A wedding ring at a jeweller's shop would be
replaceable, while the ring would not be replaceable if it were lost by a person who
wears the wedding ring.
M DU BOIS PER / PELJ 2018 (21) 26

approach distinguishes between fungible property and personal property,

with a stronger moral claim for the protection of property which serves
personhood than for fungible property.142

Basically, some forms of property are more worthy of protection than others,
and should enjoy more stringent legal protection. The theory uses a
continuum, with property closer to the fungible side being more regulatable
than property on the personal side (which has a stronger entitlement to
protection).143 Radin's example of personal property takes the form of a
home because it is closely connected to liberty, privacy and freedom of
association.144 The area of takings law (comparable to expropriation law in
South Africa) is an area where this theory can be applied with some
success. Courts should be more likely to award compensation for the taking
of personal property than for property that constitutes mere monetary
loss.145

Radin's146 personality theory also explores the interaction between fungible

property and fundamental rights such as freedom of expression, concluding
that fundamental rights should override any interest in fungible property
more easily than a personal property interest. It is more difficult to weigh up
the interests where both have a personal aspect.

Where a constitutional property case arises, the particular type of property

in question must be examined to determine whether an element of
personality is present. If not, another constitutional right such as the right to
education or freedom of expression would more easily outweigh the
property interest, particularly if it also entails a fundamental right. If the
property interest does have a personal aspect, the court would have to do
more to weigh up the two more equal rights to determine which one must
ultimately receive more stringent protection.

It is submitted that intellectual property interests (patents, copyright, designs

and trademarks) may be justified by the spiritual theories insofar as they
serve to secure a sphere of personal liberty. Copyright and to a lesser extent
patent rights are the only categories that appear to be closely linked to the
personality, as envisioned by Radin's personality theory. Intangible property
rights underpinned by commercial motives (confidential information, trade

142 Radin 1982 Stan L Rev 960, 978.

143 Radin 1982 Stan L Rev 986-987.
144 Radin 1982 Stan L Rev 991-1002.
145 Radin 1982 Stan L Rev 1002-1008.
146 Radin 1982 Stan L Rev 1008-1013.
M DU BOIS PER / PELJ 2018 (21) 27

secrets, rights protected by unfair competition principles and probably also

trade-mark rights) cannot be justified by the spiritual theories since they are
not instrumental in achieving individual autonomy. Traditional knowledge
protection could benefit from personality theory justification, since the
knowledge is so closely connected to the cultural and spiritual life of the
holders of the traditional knowledge. The personality theory could serve as
a point of departure in developing a property theory for traditional
knowledge, which could form the basis of statutory protection.

6 Economic theory

Intellectual property rights are very closely related to markets, since these
rights create markets in information. Economic theory is important to justify
intellectual property, but has a very wide scope and diverse approaches.
For intellectual property, the basic economic theory holds that a market
failure arises due to high initial creation costs and marginal distribution costs
of intellectual products, so an economic incentive to create must be
provided to overcome market failure.147

A criticism of this theory is that there is no proof that only property rights can
provide this incentive to create. The creators are often not the owners of the
property rights, and even if an incentive is provided there is uncertainty as
to how much compensation would ensure an adequate incentive.148

Where tangible property is concerned, property laws are essentially used to

allocate scarce resources among competing needs. The economic
argument states that without specific property protection, suppliers would
not produce and supply to the market even with the potential for high profits.
This argument draws from the free rider principle: opportunists should not
be allowed to reap where they have not sown, otherwise there would not be
incentive to invest skill and resources to create.149 The other side of this
argument is that free riders provide competition, without which there would
be undesirable monopolies. Arguably, this is the reason why there are
limited durations imposed on intellectual property monopolies.150

147 Drahos Philosophy of Intellectual Property 6; Ciro 2005 JILT 6: "Intellectual property
laws produce an artificial restriction that creates the scarcity problem and are then
used to allocate scarce resources through a complex web of private property rights
controlled by intellectual property owners."
148 Ciro 2005 JILT 4.
149 Ciro 2005 JILT 5-7.
150 Ciro 2005 JILT 5. Compare Boyle 2000 Vand L Rev 2007-2039.
M DU BOIS PER / PELJ 2018 (21) 28

Intellectual property is not inherently scarce like tangible property; its

scarcity is created through legislation granting property rule-type protection.
The market failure justification is therefore not applicable, since market
value is based on artificial scarcity created through property legislation and
not purely market demand. Instead a market instrumental justification is
used by economists to deem the property system as the only workable
option.151

The basic economic theory as applied to intellectual property may be

explained as follows:

Information is a public good, non-excludable and non-rival. It is hard to stop

one unit from satisfying an infinite number of users at zero or close to zero
marginal cost. Under such conditions, producers of information and
information goods will have inadequate incentives, leading to under-
production…The solution to this public goods problem is intellectual property.
By creating a limited monopoly called an intellectual property right, we can
give producers an adequate incentive to create. 152

Unfortunately, this argument may also be used to expand the reach of

intellectual property unduly. With digitisation, intellectual goods become
less rivalrous and less excludable, which arguably requires stronger
intellectual property protection. However, intellectual property rights also
create monopolies, which usually impose losses from an economic
viewpoint. In theory, it might be expected that the benefits reaped through
encouraging innovation would be offset by the costs of the monopoly. This
"seems to suggest that the idea of a perfect market in information is
internally contradictory even in theory".153

The basic economic theory does not answer the question of how much the
reward should be or what form it should take. A property right is not
necessarily the only way to provide compensation or incentive. However, all
forms of intellectual property are created through financial investment,
which renders this theory applicable. They have high initial costs, but
afterwards production and distribution can take place at very low cost.
Without some form of protection, some intellectual property products may
not be created, since creators and investors may not be willing to expend
money and effort.

151 Ciro 2005 JILT 5.

152 Boyle 2000 Vand L Rev 2012.
153 Boyle 2000 Vand L Rev 2012-2013; Ciro 2005 JILT 6: Intellectual property rights
award monopoly rights, which may be anti-competitive. It is market value rather than
market failure that may be used to explain the creation and protection of intellectual
property.
M DU BOIS PER / PELJ 2018 (21) 29

7 Theory of natural monopoly

As mentioned, intellectual property rights create monopolies. The cost

structure that governs intellectual property (justifications for the exclusive
rights granted by reference to the high fixed costs of production and the
small marginal distribution cost of the subject matter of intellectual property)
also applies to monopolies and their regulation. Along these lines, Ghosh 154
developed a theory of natural monopoly as an alternative metaphor for
intellectual property. Applying criticisms of natural monopoly to intellectual
property challenges the exclusivity of intellectual property, assisting in
developing intellectual property law in a more public interest-oriented way.
This entails transforming regulation structures rather than extinguishing
them.

Ghosh155 identifies three types of criticisms of natural monopoly that may

successfully be applied to re-regulate intellectual property: questioning
assumptions about information and cost; exploring the idea that decreased
government regulation would be possible if there were potential competition;
and supposing that the politics and economics of regulation should take into
account the political reform and recognition of consumer interests.

In the area of inventing, high fixed costs and low distribution costs are often
cited to justify intellectual property exclusivity. This justification is similar to
the one for a natural monopoly: the combination of high fixed costs and low
distribution costs would drive the market down to zero, therefore artificial
scarcity through exclusivity is necessary in order to avoid competition that
would destroy the market.156

Ghosh's157 application of natural monopoly criticisms to intellectual property

suggests that in determining how much incentive is required to ensure
continued creation, a re-regulation is necessary. This approach of viewing

154 Ghosh 2008 U Ill L Rev 1128, 1138-1139: "A natural monopoly arises when the
average costs of producing a product or service declines as more of the product or
service is supplied to the market. Because of declining average costs, it is more
efficient from the perspective of lowering the average cost of production to have one
firm service the market rather than duplicate expenditures. Average costs are falling
either because there are huge fixed costs to production or because the costs of
producing an additional unit of the product or service are negligible". See Berg and
Tschirhart Natural Monopoly Regulation 12-24; Spulber Regulation and Markets
513-514.
155 Ghosh 2008 U Ill L Rev 1154. Also see Ghosh 2006 SCRIPT-ed 101.
156 Ghosh 2008 U Ill L Rev 1157-1158, 1159: "Natural monopoly-like justifications for
intellectual property are most prevalent in the controversial areas of database
protection, computer software, and biotechnology".
157 Ghosh 2008 U Ill L Rev 1160-1166.
M DU BOIS PER / PELJ 2018 (21) 30

intellectual property as part of public law (in other words constitutional

principles are applicable) acknowledges that the purpose of property is not
only to strengthen private rights, but also to loosen exclusionary rights. It
implies that the traditional view of strong property rights must shift towards
a regime that recognises limits on exclusion. This theory was developed
with the intellectual property categories of patents, copyright, designs,
trademarks and trade secrets158 in mind, and suggests how intellectual
property products may be regulated in order to leave space for other rights
and interests such as the public domain, the right to education and the right
to freedom of expression.

8 Conclusion

This article asks why and under which circumstances intellectual property
rights and other intangible property interests should and could be
recognised and protected under the constitutional property clause.

The natural-law theory principle that a person should have property in that
which he has created by his own intellectual effort and exertion has played
a large role in the recognition of intellectual property rights, but should not
be the sole justification. While the labour theory is still a strong theory for
the justification of the protection of intellectual property rights (particularly
patents, copyright, registered designs and trademarks), it becomes clear
that it does not justify unlimited rights, but rights subject to private and public
interests. Intellectual property rights are physically non-excludable, but
legally excludable where statutes afford protection and such protection is
invoked by the holder of a particular resource. There are also certain morally
non-excludable resources that need to stay in the public domain – and
intellectual property statutes provide some exceptions for these.
Biotechnological products, particularly DNA-related inventions, may
sometimes provide an example of a resource that may by morally non-
excludable and as such would not receive any property rule-type protection
in either private law or constitutional law.

Traditional knowledge is generally not justified by the labour theory, but

rather theories of distributive justice or human rights. Applying the labour
theory leads to the reward of only the last person who laboured on the work,
usually eliminating the traditional community from any reward.

158 In American law, trade secrets are regarded as a category of intellectual property.
M DU BOIS PER / PELJ 2018 (21) 31

According to the reward theory, an individual should be rewarded for own

labour and effort, but also for creative efforts that benefit society. Currently
the creative individual is rewarded by way of an exclusive intellectual
property right for a limited period of time, but the reward theory does not
indicate that this would be the only appropriate form that the reward could
possibly take. This is applicable where intellectual property facilitates the
disclosure of works that would otherwise have remained secret, and where
it enhances the free flow of information.

The incentive theory holds that if creative works are protected by law and
creators are awarded some form of benefit, then this would motivate other
creative individuals to create new intellectual works, and this will benefit
society. A balance must be found between providing an incentive to create
and the public's access to these creations and inventions.

The reward and incentive theories are based on the idea that the disclosure
of useful information should be rewarded by a property right. Where
information is not disclosed (see for example trade secrets and confidential
information) these theories are not useful. Patents, copyright and registered
designs may be justified by the incentive and reward theories, but
trademarks do not appear to confer any particular benefit on society except
for prohibiting the confusion of the products or services sold under the
trademark with other similar products or services, which is possibly not the
kind of benefit envisioned by the reward theory. Traditional knowledge finds
no benefit from either the reward or incentive theory.

The spiritual theories state that an author's personality, spirit and will cannot
be free unless the author is also the owner of the work created. A person
must have dominion over certain objects in order to achieve individual
autonomy. In the context of intellectual property rights, a creator's right to
use his invention must be distinguished from the right to prevent others from
using the invention. This theory has been developed into the personality
theory, which states that a person has to have control over certain resources
in the external environment in order to be a person and such control needs
to be fulfilled by property rights. The question whether an intellectual
property interest may be justified by the personality theory or not depends
on how central an interest is to the fulfilment of one's personhood. The
spiritual theories may serve to justify the protection of intellectual property
only to the extent that they serve to secure a sphere of personal liberty, and
as far as they do not fall into the category of moral non-excludability. The
M DU BOIS PER / PELJ 2018 (21) 32

personality theory as envisioned by Radin159 is perhaps only applicable in

the context of intellectual creations that are closely related to the
personality, therefore perhaps only copyright. Traditional knowledge
protection could possibly benefit from the personality theory since the
knowledge is sometimes so closely connected to the cultural and spiritual
life of the holders of the traditional knowledge. It might serve as a point of
departure in developing a theory specifically for the justification of the
protection of traditional knowledge. The other intangible property categories
arguably constitute fungible property.

The economic theory is most commonly used to justify the protection of

intellectual property rights (patents, copyright, designs and trademarks),
since they have high initial costs and low distribution costs and some form
of protection (through legislation imposing artificial scarcity) is necessary in
order to ensure continued investment in the creation of intellectual products.
According to the theory it is necessary to grant a limited monopoly in the
form of an intellectual property right. However, these monopoly rights may
also be seen as anti-competitive.

This necessitates consideration of the theory of natural monopoly as a

criticism of the intellectual property system. The justification by reference to
the high fixed costs of production and the small marginal distribution cost of
the subject matter of patents, copyright and trademarks also justifies the
protection of natural monopolies and their regulation. Hence the theory of
natural monopoly can also inform the regulation of intellectual property.
Understanding intellectual property as a system of regulation brings it under
public law. This assists in altering the exclusivity of intellectual property
rights to include other rights and interests, for example the public domain.

The public domain or intellectual property commons consists of creative

works that are not protected by intellectual property rights. Some interests
are incapable of being owned by virtue of their legal nature and others are
kept in the public domain as a matter of policy. Some may be described as
morally non-excludable. Certain aspects of intellectual property protected
works fall in the public domain. These are provided for in the legislation
governing each category of intellectual property (for example the fair use
exception in the South African Copyright Act 98 of 1987). The public domain
entails free use, although this means unrestricted use rather than use
without payment. In other words, everyone would have access upon the
payment of some flat fee and the holder of an intellectual property right

159 Radin 1982 Stan L Rev 957-1015.

M DU BOIS PER / PELJ 2018 (21) 33

would not be able to exclude certain persons from the use of a work. The
public domain is an important interest which should be developed as a right
rather than a privilege, since it is important to keep raw creative materials
out of the property regime so that it can be used freely in future creative
works.

These theories may be used as a starting point in determining the relative

value of an intellectual property right where it conflicts with a fundamental
right such as the right to health, education or freedom of expression. Once
the relative value has been determined, then the enquiry can proceed to
balance the two constitutional rights in question or give effect to the property
right in the space left by the non-property fundamental or constitutional right,
as may be required in the particular case.

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List of Abbreviations

Cambridge LJ Cambridge Law Journal

Cardozo Arts & Ent LJ Cardozo Arts and Entertainment Law Journal
Ga LJ Georgia Law Journal
Geo LJ Georgetown Law Journal
Harv L Rev Harvard Law Review
IPQ Intellectual Property Quarterly
JILT Journal of Information, Law and Technology
J L Prop & Soc'y Journal of Law, Property and Society
LT Legal Theory
PELJ Potchefstroom Electronic Law Journal
Phil & Pub Aff Philosophy and Public Affairs
SALJ South African Law Journal
SA Merc LJ South African Mercantile Law Journal
Stan L Rev Stanford Law Review
Stell LR Stellenbosch Law Review
THRHR Tydskrif vir Hedendaagse Romeins-
Hollandse Reg
U Ill L Rev University of Illinois Law Review
UCL Juris Rev UCL Jurisprudence Review
Vand L Rev Vanderbilt Law Review