Exclusive right
Encyclopedia
In Anglo-Saxon law
, an exclusive right is a de facto, non-tangible prerogative
existing 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. 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 are a form of monopoly
.
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 law
, copyright law, patent law, in relation to public utilities
, or, in some jurisdictions, in other sui generis
legislation. Many scholars argue that such rights form the basis for the concepts of property and ownership
.
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.
, 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 easement
may allow a certain level of public access to private land.
s 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
."
s with regard to land or chattel
s.
In continental Europe
there 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 instrumentalism
or consequentialism
, as exemplified by the reasoning inferred in Article One of the United States Constitution
that copyrights and patents exist solely "To promote the Progress of Science and useful Arts."
Anglo-Saxon law
Anglo-Saxon law is a body of written rules and customs that were in place during the Anglo-Saxon period in England, before the Norman conquest. This body of law, along with early Scandinavian law and continental Germanic law, descended from a family of ancient Germanic custom and legal thought...
, an exclusive right is a de facto, non-tangible prerogative
Prerogative
In law, a prerogative is an exclusive right given from a government or state and invested in an individual or group, the content of which is separate from the body of rights enjoyed under the general law of the normative state...
existing in law (that is, the power
Power (sociology)
Power is a measurement of an entity's ability to control its environment, including the behavior of other entities. The term authority is often used for power perceived as legitimate by the social structure. Power can be seen as evil or unjust, but the exercise of power is accepted as endemic to...
or, in a wider sense, right
Right
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory...
) 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. 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 are a form of monopoly
Monopoly
A monopoly exists when a specific person or enterprise is the only supplier of a particular commodity...
.
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 law
Property law
Property law is the area of law that governs the various forms of ownership in real property and in personal property, within the common law legal system. In the civil law system, there is a division between movable and immovable property...
, copyright law, patent law, in relation to public utilities
Public utility
A public utility is an organization that maintains the infrastructure for a public service . Public utilities are subject to forms of public control and regulation ranging from local community-based groups to state-wide government monopolies...
, or, in some jurisdictions, in other sui generis
Sui generis
Sui generis is a Latin expression, literally meaning of its own kind/genus or unique in its characteristics. The expression is often used in analytic philosophy to indicate an idea, an entity, or a reality which cannot be included in a wider concept....
legislation. Many scholars argue that such rights form the basis for the concepts of property and ownership
Ownership
Ownership is the state or fact of exclusive rights and control over property, which may be an object, land/real estate or intellectual property. Ownership involves multiple rights, collectively referred to as title, which may be separated and held by different parties. The concept of ownership has...
.
Privately granted rights, created by contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
, may occasionally appear very similar to exclusive rights, but are only enforceable against the grantee, and not the world at large.
Property
In relation to propertyProperty
Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...
, 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
Real property
In English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
, or from taking their personal possessions
Personal property
Personal property, roughly speaking, is private property that is moveable, as opposed to real property or real estate. In the common law systems personal property may also be called chattels or personalty. In the civil law systems personal property is often called movable property or movables - any...
. However, an exclusive right is not necessarily absolute, as an easement
Easement
An easement is a certain right to use the real property of another without possessing it.Easements are helpful for providing pathways across two or more pieces of property or allowing an individual to fish in a privately owned pond...
may allow a certain level of public access to private land.
Intellectual property
Most governmentGovernment
Government refers to the legislators, administrators, and arbitrators in the administrative bureaucracy who control a state at a given time, and to the system of government by which they are organized...
s recognize a bundle of exclusive rights
Bundle of Rights
The bundle of rights is a common way to explain the complexities of property ownership. Teachers often use this concept as a way to organize confusing and sometimes contradictory data about real estate....
in relation to works of authorship, inventions, and identifications of origin. These rights are sometimes spoken of under the umbrella term
Umbrella term
An umbrella term is a word that provides a superset or grouping of concepts that all fall under a single common category. Umbrella term is also called a hypernym. For example, cryptology is an umbrella term that encompasses cryptography and cryptanalysis, among other fields...
"intellectual property
Intellectual property
Intellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...
."
History and arguments
In Anglo-Saxon property law, exclusive rights have often been the codification of pre-existing social normNorm (sociology)
Social norms are the accepted behaviors within a society or group. This sociological and social psychological term has been defined as "the rules that a group uses for appropriate and inappropriate values, beliefs, attitudes and behaviors. These rules may be explicit or implicit...
s with regard to land or chattel
Personal property
Personal property, roughly speaking, is private property that is moveable, as opposed to real property or real estate. In the common law systems personal property may also be called chattels or personalty. In the civil law systems personal property is often called movable property or movables - any...
s.
In continental Europe
Continental Europe
Continental Europe, also referred to as mainland Europe or simply the Continent, is the continent of Europe, explicitly excluding European islands....
there is a view that copyrights, patents, and the like are the codification of some kind of moral right, natural right, or personality right
Personality rights
"Personality rights" is a common or casual reference to the proper term of art "Right of Publicity". The Right of Publicity can be defined simply as the right of an individual to control the commercial use of his or her name, image, likeness or other unequivocal aspects of one's identity...
. However, such arguments can only be consistently justified through instrumentalism
Instrumentalism
In the philosophy of science, instrumentalism is the view that a scientific theory is a useful instrument in understanding the world. A concept or theory should be evaluated by how effectively it explains and predicts phenomena, as opposed to how accurately it describes objective...
or consequentialism
Consequentialism
Consequentialism is the class of normative ethical theories holding that the consequences of one's conduct are the ultimate basis for any judgment about the rightness of that conduct...
, as exemplified by the reasoning inferred in Article One of the United States Constitution
Article One of the United States Constitution
Article One of the United States Constitution describes the powers of Congress, the legislative branch of the federal government. The Article establishes the powers of and limitations on the Congress, consisting of a House of Representatives composed of Representatives, with each state gaining or...
that copyrights and patents exist solely "To promote the Progress of Science and useful Arts."
Quotations
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 JeffersonThomas JeffersonThomas Jefferson was the principal author of the United States Declaration of Independence and the Statute of Virginia for Religious Freedom , the third President of the United States and founder of the University of Virginia...
to Isaac McPherson, 1813)