임마누엘 칸트의 재산권 철학과 특허권의 정당성-AI의 발명주체성에 대한 철학적 검토를 포함하여-

Since the conception of specific ideas using the laws of nature, etc. is a mental process through human autonomy, in Kantian philosophy, human autonomy is the basis for the formation of property rights. The legitimacy of exclusive acquisition of rights is necessary to secure human freedom, but other’s existing freedoms must not be invaded by creating something new which does not invade the existing freedoms of others. That is, there must be no harm to others. Therein lies the rational basis for requiring human creativity in what we call intellectual property law:i.e., the originality in copyright law, the novelty in patent law, and the distinctiveness in trademark law. Since Kant’s philosophy is based on human personality, the expression of personality becomes an expression of the inner self of an autonomous human being. It cannot help but have personal attributes, and Kant insisted on the freedom of inner expression free from the ideological control of the king and his subjects, and sought to protect the speech of that expression to the public. Thus, Kant’s philosophy provides strong justification for moral rights of copyright/author’s right as we have seen. However, Kant’s philosophy received relatively little attention regarding the legitimacy of patent rights. Under Kant’s philosophy of property rights, not only by empirical possession based on physical possession of reality, but also by a priori possession based on conceptual/intelligible possession became the basis of property rights. Therefore, creation using ideas can be owned conceptually by controlling and managing it through one’s own space and time, even if he/she does not express his/her intention to own it to the outside through physical possession. Furthermore, the social contract theory justifies the establishment of property rights by contract, and Kant also acknowledges the establishment of property rights by contract. Therefore, even ideas that cannot have physical possession and exclusivity can be privatized for a certain period of time through a bilateral contract, and after expiring that period, those ideas be placed in the public domain and under free use by the public. Therefore, patent rights are also supported by Kant’s philosophy.