(In)justice in Intellectual Property

Michael John Long is an LLM candidate at Osgoode Hall Law School. He introduces his current thesis research below.

‘That is why there is no hope for the vagrant as he stands before the magistrate.  Even if, through his stammerings, he should utter a cry to pierce the soul, neither the magistrate nor the public will hear it.  His cry is mute.’  In this passage from her essay, Human Personality, Simone Weil writes that affliction, when seen vaguely from a distance, is often confused with simple suffering, which has the effect of inspiring in the generous feelings of pity.  However, up close, the reveal of affliction produces shock of horror, the likes of which causes people to shiver and recoil.  To truly listen to someone in such a state is to put oneself in that desolate place, which is an act that is ‘more difficult than suicide for a happy child.’  This is why the afflicted are not heard and why the vagrant stands muted in front of the magistrate who keeps an elegant flow of witticisms.

Simone Weil was passionately concerned with justice, and believed the meaning of justice has been lost and replaced by a vacuous notion of rights, which ‘makes us forget the value of life.’  Justice, she writes, consists in seeing that no harm is done, and produces the cry ‘why am I being hurt?’  This is an infallible cry even though it is often unheard.  The cry we hear more often refers to rights and asks ‘why does she have more than I?’  Weil believed that we must learn to distinguish between the two cries, and address the first cry with the indispensable spirit of justice.

The goal of this study is to explore whether Simone Weil’s notion that a focus on the concept of rights impedes our understanding of issues of justice, and specifically, in the intellectual property realm.  In order to do so, this study will utilize the Weil essay, Human Personality, as a framework within which to examine the concept of justice in light of intellectual property regimes.  Although she never discussed intellectual property explicitly, she did discuss the idea of tangible property, writing in opposition to the idea of a natural right.  In terms of justice, she argued that we often confuse this concept with rights when the latter speaks only the notion of property.  This is so because the language of rights is deeply rooted in property, and although it may be valid in its own region, different language is needed in order to sustain inspiration when addressing true injustice.

  1. Very interesting thesis. Who do you consider to be the “vagrants” with regard to IP rights? Will you be addressing the traditional, Lockean, justification for IP as part of your argument?

  2. I appreciate your comment Bart. Weil’s language seems harsh, at first, in her use of the word ‘vagrant.’ However, my understanding of the passage in its larger context is that ‘vagrant’ refers to how the world, and specifically, the legal system see those suffering from affliction; or perhaps better said, fail to see and fail to hear those suffering from affliction. This is why she calls for a code of justice, as opposed to a code of rights, because rights language with its foundation in property is ill suited to address issues of injustice. As well, I will address the traditional Lockean justification through Weil’s critique of an over extension or abuse of property. She believed that both private and collective property were crucial needs of the soul, and that it is desirable that people should own a home, and whenever technically possible, the tools of their trade, of which land and livestock apply. This principle is violated where land is worked by, say, agricultural laborers, and farm hands, under the orders of an estate manager, and owned by towns people who receive the profit of such labor. In this regard the land is wasted, not in terms of its agricultural production, but in terms of its over extension, and in terms of its ability to satisfy the property need which it could provide.

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