The Right to Know Versus the Right to Own: The Ethical Dilemma of Intellectual Freedom Versus Intellectual Property – A South African Case Study

Johannes J. Britz and K. E. van Zyl

ETHICOMP Journal Vol 1 Issue 1


The aim of this paper is to illustrate that there is a conflict of interests between the right to intellectual freedom, with specific emphasis on the right of access to intellectual products, and the right to intellectual property. The reasons for this statement are explained and the norm of justice is identified that can act as an ethical guideline with regard to the different ethical problems. The way in which intellectual property rights in the South African university environment (with specific referens to the University of Pretoria) are protected is used as a case study.

The paper is structured as follows:

  1. Introduction
  2. A clarification and definition of the concepts intellectual freedom (as the right to know) and intellectual property (as the right to own) are given. Both are indicated as information related human rights and the importance of these rights in the information era are illustrated.

  3. The ethical dilemma of the right to intellectual freedom versus the right to intellectual property
  4. This part of the paper is to be understood against the background of the preceding. Specific attention will be given to the main ethical issues regarding the right to intellectual freedom and the right to the protection of intellectual property. It will be indicated that the right to intellectual freedom is based on the right to know (or to be intelligent) which implies the right of access to other people\x{FFFD}s intellectual products. The question will therefore be posed whether knowledge (defined here as the intellectual products of people) can be seen as a common good which must be accessible for the benefit of society. The importance of access to knowledge in the educational/academic environment is emphasized.

    It will further be illustrated that this right of access to intellectual products does sometimes clash with the interests of those who generate and distribute these intellectual products. It will be argued that the main reason for this clash is of an economic nature (the protection of the economic interests of both the authors and publishers). The way in which the protection of these economic interests (for example copyright legislation) can hamper the right of access to other people\x{FFFD}s intellectual products will be explained.

    This dilemma results in the following ethical questions, which will briefly be dealt with:

    • Must the value of ownership of information be seen as a higher value than the right of access to information?
    • Does the government (or any other authority) have any responsibility towards the protection of both these rights?
    • In which cases can copyright be infringed with regard to the right of access to certain categories of information?
  5. The South African situation
  6. In this section of the paper attention will be given to the South African situation with specific reference to DALRO (the official organisation in South African protecting the property rights of authors and publishers) and the South African universities (with specific reference to the University of Pretoria), regarding the use and distribution of academic information. It will be argued that the application of the copyright legislation by DALRO has hampered to a certain extent the freedom of access to intellectual products and therefore inhibiting students’ right to know. Freedom of access to information does not however imply the free access thereof. The question will therefore be posed in which manner this right to own can be protected without hampering the right to know.

  7. Justice as an applicable ethical norm to be considered
  8. In this section the justice as an ethical norm with regard to the above mentioned ethical questions will be dealt with. The concept justice is defined as an act of giving a person what s/he deserves and fairness. Four categories of justice are distinguished namely commutative, distributive, contributive and retributive justice. The relevance of each of these categories with regard to the ethical dilemma of the right to know versus the right to own will be illustrated. A few practical guidelines, based on these categories of justice, will be suggested. These guidelines will be of specific relevance to the South African context.