When Property is Something Else: Understanding Intellectual Property through the Lens of Regulatory Justice

Abstract

While everyone agrees that the subject of intellectual property is copyrights, patents, trade marks and related legal concepts, such as trade secrets, there is increasing doubt that this subject can or should be described as property (Carrier, 2004; Lemley, 2005).Blackstone’s Commentaries discusses patents and copyright as a species of monopoly (1979b, pp. 407, 159). Contemporary economic theorists, uninfluenced by the legal theorist William Blackstone, analyse intellectual property as a species of the monopoly problem (Levine and Boldrin, 2002). Even the concession that intellectual property is a set of property rights does not resolve the issue, for the rights created by copyright, patents, trade marks and related concepts are decidedly different from the rights granted to land or other tangible assets (Heald, 2005). Even intangibility cannot serve as a marker for differentiation since what is labelled intellectual property is different from intangible assets such as securities and other financial instruments. Scholarly pages are expended debating what intellectual property is not. In this chapter, I explore what intellectual property is. My concern is less with the name, and even though the term ‘intellectual property’ is unfortunate, it is acceptable if properly understood for the concept being referenced.