Exclusionary abuses: refusal to license intellectual property rights
Rosa GREAVES1 AND Svetlana NASIBYAN2
Intellectual property rights (patents, trade-marks and copyright) are private rights granted by sovereign states in the public interest. There are various justifications put forward in order to explain the need for the existence of intellectual property rights. John Locke’s writings about property are probably the most commonly used as, according to him, “every man has a ‘property’ in his own ‘person’. […] The ‘labour’ of his body and the ‘work’ of his hands, we may say are properly his. Whatsoever, then, he removed out of the state that Nature has provided and left it in, he hath mixed his labour with it, and joined to it something that is his own, and thereby makes it his property. […] For this ‘labour’ being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good left in the common for others”.3 In applying this to the ownership of intellectual property rights, it follows that “property rights in intangible creations operate as reward for the author’s intellectual labour”.4
Intellectual property rights are exclusionary rights by their very nature given that the owners of intellectual property may exercise their rights so as to prevent other market operators from either manufacturing products protected by a patent they own, by applying identical or similar marks to their registered trade-marks to identical or...
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