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Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad

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Justificatory theories for intellectual property viewed through the constitutional prism

Mikhalien du Bois

Abstract


In order to determine the extent to which intellectual property rights should enjoy protection under the constitutional property clause, some of the classical and newer justificatory theories for property may be employed, including the labour theory, reward theory, incentive theory, theory of natural law, spiritual theories, personality theory, economic theory, and theory of natural monopoly. These theories must be applied in line with the Constitution of the Republic of South Africa, 1996, keeping in mind that other fundamental rights must be balanced with the protection afforded to intellectual property in order to ensure its continued production. It is also important that intellectual property statutes be developed to promote a thriving intellectual commons.

Keywords: Constitutional property; intellectual property; justificatory theories; labour theory; reward theory; incentive theory; theory of natural law;  excludability; spiritual theories; personality theory; economic theory; theory of natural monopoly; intellectual commons; public domain.




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