- Exclusive right
Anglo-Saxon law, an exclusive right is a de facto, non-tangible prerogativeexisting in law (that is, the power or, in a wider sense, right) to perform an action or acquire a benefit and to permit or deny others the right to perform the same action or to acquire the same benefit. Whilst a "prerogative" is in effect an exclusive right, the term is restricted for use for official state or sovereign (i.e constitutional) powers.
Exclusive rights can be established by law or by contractual obligation, but the scope of enforceability will depend upon the extent to which others are bound by the instrument establishing the exclusive right; thus in the case of contractual rights, only persons that are parties to a contract will be affected by the exclusivity.
Exclusive rights may be granted in
property lawand intellectual property lawas well as in relation to public utilities. Many scholars argue that such rights form the basis for the concepts of property and ownership.
Types of exclusive rights
In relation to
property, an exclusive right will, for the most part, arise when something tangible is acquired; as a result, others are prevented from exercising control of that thing. For example, a person may prohibit others from entering and using their land, or from taking their personal possessions. However, an exclusive right is not necessarily absolute, as an easementmay allow a certain level of public access to private land.
governments recognize a bundle of exclusive rights in relation to works of authorship, inventions, and identifications of origin. These rights are sometimes spoken of under the umbrella term" intellectual property." An example is copyright, which grants a copyright holder a negative rightto exclude others from exploiting their 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 or common-law trademark).
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 a copy of a computer program 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 useor fair dealing, which vary widely from jurisdiction to jurisdiction.
History and arguments
continental Europethere is a view 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 instrumentalismor consequentialism, as exemplified by the reasoning evident in Article One of the United States Constitutionthat copyrights and patents exist solely "To promote the Progress of Science and useful Arts."
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.
*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 a 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 Jeffersonto Isaac McPherson, 1813)
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