CONSTITUCIÓN Y PROPIEDAD INTELECTUAL: UN NUEVO MARCO PARA BALANCEAR LA CREACIÓN Y ACCESO AL CONOCIMIENTO

Abstract

The current constitutional provision on intellectual property (Art. 19 No. 25) is deficient since it is opaque regarding the economic and social objectives of said type of property. For this reason and considering the growth of the intangible-based economy in the 21st century, it becomes necessary and opportune to design a new constitutional provision that does not thoughtlessly refer to the general rule on property, in order to show the instrumental nature of intellectual property, as a tool to solve the “public good” market failure that affects the goods that are its object (which are non-rivalrous and non-excludable). Therefore, a new constitutional rule must be based on the promise of intellectual property, that is, optimizing the equilibrium between creation and access to knowledge, thus providing a general framework so that the legislator, public offices and adjudicators can then “update” such equilibrium considering the state of development of the country. The article proposes a text of constitutional provision that can be grounded in Ralwsian terms, that is, from a hypothetical scenario of “original position”. Moreover, the article explains that the proposed text is not exhausted in a mere programmatic declaration, thus mentioning what type of concrete effects it can produce within the legal system.