IP law safeguards the autonomy and capabilities of marginalized communities and facilitates societal well-being—internal safety valves and public domains check abuses.

The capability-enhancing function of IP law refers to its potential to advance human-capabilities as envisioned in the capability approach to justice developed by Sen and Nussbaum. The capability approach advocates that, a just State must secure central human capabilities to a threshold level with the aim of facilitating ‘human flourishing’ and has been employed by scholars such as Chon 35 and Sunder36 as a conceptual framework in developing democratic theories of IP law (particularly focusing on copyright). These democratic theories elaborate the link between IP law and the promotion of human capabilities, highlight the limitations of the narrow-utilitarian-based conceptualization of IP law and advocate for a broader distributional-justice based approach that is aimed at facilitating human-development.

The concept of capabilities is vaguely defined but is described in relation to ‘functionings’. Functionings are “the various things a person may value doing or being”37 and capability refers to various combinations of functionings that are feasible for an individual to achieve. 38 Thus, capability can be understood as the substantive freedom 39 or autonomy of a group or entity to achieve functioning combinations based on their individual and collective values and preferences. Nussbaum presents an open-ended list of capabilities40 which includes: (a) the ability to use the senses; to imagine, think, and reason and to use one’s mind in ways protected by guarantees of freedom of expression (b) ability to participate effectively in political choices that govern one’s life (i.e. the right of political participation, protections of free speech and association), (c) the ability to laugh, play and enjoy recreational activities, (d) the ability to have good health. Thus, these capabilities correspond to fundamental rights and freedoms41 as guaranteed by the EU Charter of Fundamental Rights (CFR)42 and securing them will advance democratic inclusion in society by promoting equality and self-determination and diversity.

The production function of IP law enhances public accessibility of intellectual goods by bringing the innovation process within the market-mechanism. The promotion of human capabilities requires a legal and regulatory infrastructure that can ensure equitable access to and enjoyment of those goods by all members of society: not merely for passive consumption (e.g., watching a film, obtaining medication) but to actively engage with these goods in ways to enable members of the public to assert their status as equal participants in the cultural, political and economic aspects of society. Thus, active engagement with intellectual goods is critical for citizens to participate in the democratic process in a meaningful way. This entails for example, the ability to respond and react to literary, artistic, and scientific content through commentary, critique, or homage 43 and the ability to adjust and develop existing innovations for the purpose of optimizing their utility to oneself and/or to society. This gains evens more significance within the digital environment which facilitates participatory forms of collaborative creation, typically involving the re-use and re-interpretation of copyright protected content (e.g., user-generated content (UGC) such as memes, GIFs on online social media platforms).

As noted in Section 1 above, IP law contains inbuilt structural limitations or ‘internal safety-valves’, which contribute towards achieving these aims by (a) nourishing a vibrant public domain; (b) facilitating uses of IP protected content which are crucial for securing human capabilities during the term of protection through E&L.

As per democratic theories of IP law, nourishing a vibrant intellectual goods public domain is not merely an unintended by-product of IP law but rather its key objective.44 By constructing and sustaining a reservoir of information in which no person or entity may exercise exclusive rights, IP law provides the public with a playground for experimentation and innovation which plays a crucial role in enhancing human capabilities.45 IP law nourishes the public domain through the limited duration of exclusive rights (particularly the limited duration of copyright and patent law) and by calibrating criteria for IP rights protection in a way that safeguards the public domain from undue encroachment by exclusive IP rights. The idea-expression dichotomy in copyright law, the exclusion of mathematical methods or scientific theories from patentability and the criteria of distinctiveness and non-generic nature in trademark law prevent IP rights from being used to claim exclusive property rights in fundamental raw materials (e.g., ideas, principles) that can form essential building-blocks for innovation.

During the period of protection, E&L to IP rights 46 ensure that intellectual goods are available for consumption in ways that promote human capabilities. For instance, copyright exceptions for quotation, commentary and parody play a vital role in safeguarding users’ freedom of expression and the arts. 47 In addition, as evidenced by the Google Books decision 48 in the US (in relation to the quotation of copyright protected content), they enable imaginative transformative uses of existing intellectual goods in ways that optimize their social (e.g., development of new useful products) and economic benefits (e.g., development of new business models for commercially exploiting said products).