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The study of intellectual property is disturbing in that it is undoubtedly, from an academic and scientific point of view, the only area of law whose existence is now being questioned. As Sheff (2016) notes, no one doubts that our societies must be governed by constitutions or that the punishment of a crime must be defined and enforced by the state through criminal law. Conversely, the theoretical and empirical debate that drives intellectual property law is not so much about its characteristics and contours as about its very existence. This can be partly explained by the consequentialist premises on which the dominant justification of intellectual property is built in the academic sphere. However, such a justification is today contested by a number of legal scholars. In Justifying Intellectual Property (2011), Robert Merges, an eminent specialist in intellectual property law, argues that this ownership regime is justified primarily on deontological foundations.
For Merges, the deontological paradigm does not only provide a stronger justification for intellectual property than consequentialism, but also helps to explain most aspects of the current intellectual property regime. Indeed, according to Merges, the utilitarian approach is incapable of justifying the existence of intellectual property on a solid basis for two reasons. First, on a theoretical level, the utilitarian approach does not predetermine any particular normative solution: if intellectual property proves to be effective, it must be strengthened until it reaches the level of production of immaterial goods that maximizes total utility…


In law and economics, intellectual property has always been highly controversial as this is not only the functioning of this property that is at stake in the past and current discussion, but also its very existence. Recently, some scholars have proposed to rely on the two principle of justice of John Rawls for justifying and designing intellectual property rights. However, they arrive at conflicting conclusions. We aim to clarify this debate in two ways: first, in introducing a distinction between the patrimonial and the extra patrimonial aspect of this property; second, in including the recent results provided by economics of innovation.
JEL Classification: A13; K11; O34; O38

  • Intellectual property
  • social justice
  • Rawls (John)
  • innovation
  • copyright
  • patent
Rémy Guichardaz
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Uploaded on on 08/08/2022
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