Exclusive right
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In law, an exclusive right is the power or right to perform an action in relation to an object or other thing which others cannnot perform. The law may require that a person seek such rights through application, or it may automatically grant such rights.
Exclusive rights may be granted in property law and intellectual property law as well as in relation to public utilities. Many scholars argue that such rights form the basis for the concepts of property and ownership.
Contents |
Types of exclusive rights
Property
An exclusive right in relation to property will generally arise where something tangible is acquired and others are prevented from using or exercising control in relation to that thing. For example, a person may prohibit others from entering and using his or her land, or from taking his or her personal possessions. However, an exclusive right is not necessarily absolute, as an easement may allow a certain level of public access to private land.
Intellectual property
Most governments recognize a bundle of exclusive rights in relation to creative and scientific works and property under the umbrella term "intellectual property". An example is copyright, which grants a copyright holder a positive right to exploit his or her artistic or creative work. The position is generally similar with patents and trademarks. Exclusive rights arise from a grant of patent or registration of a trademark, while in other cases such rights may arise through use (eg. copyright).
Holding an intellectual property right generally means that the rights holder can maintain certain controls in relation to the subject matter in which the IP right subsists. For example, a person who buys software which is subject to copyright may use the software for personal use, but will probably be prohibited from creating or distributing copies of that software, subject to certain exceptions such as fair use or fair dealing.
History and arguments
In property law, exclusive rights have often been the codification of pre-existing social norms with regard to land or chattels.
In addition, some scholars (particularly in continental Europe) argue that copyrights, patents, and the like are the codification of some kind of moral right, natural right, or personality right. However, such arguments can only be consistently justified through instrumentalism or consequentialism, as exemplified by the reasoning evident in Article One of the United States Constitution that copyrights and patents exist solely "To promote the Progress of Science and useful Arts."
Other
Privately granted rights, created by contract, may occasionally appear very similar to exclusive rights, but are only enforceable against the grantee, and not the world at large.
Quotes
- It is agreed by those who have seriously considered the subject, that no individual has, of natural right, a separate property in an acre of land, for instance. By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it; but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. (Thomas Jefferson to Isaac McPherson, 1813)
Categories: Law | Rights
