Thoughts on Intellectual Property Rights: the “unorthodox” approach

Resumen

Most experts hold the thesis that in the world there is a massive violation of Property Rights (property rights) in the field of intellectual property (specifically in certain parts of the industrial property such as patents and utility models). This idea has influenced the creation of national and international legislation which, in the opinion of a particular dissident doctrine, has generated -unnecessary- levels of overprotection. In an abstract and theoretical sense, this doctrine criticizes the dominant view. It relies on arguments such as the lack of need to regulate industrial property to the extent that an effective process of rivalry (economic competition) prevails. This through voluntary social cooperation that would make it inappropriate to establish the same protection that physical property receives. This assumption is valid in terms of the economic power of exclusion and recognition of ownership (subjective rights) despite the prevalence of theses such as the one that defends the need to introduce incentives (patrimonial retribution) for the generation of ideas and continuous improvements in innovation and development. Furthermore, this expressed through patents and utility models and their commercial identification (trademarks). Therefore, based on the above, and based on specific legal-economic considerations, this contribution choices a descriptive and argumentative methodology to present some thoughts on an unorthodox thesis: Why does a particular part of intellectual property produce a violation of Property Rights -understood as a passively universal obligation-?