The role of property (was Re: origins of "IP")

On 10/23/96, vrkoven[_at_]world.std.com (Vance R. Koven) wrote:
>
>On 10/22/96, John Lederer <johnl[_at_]ibm.net> wrote:
>>
>> It would be interesting to find the derivation-- it is a "loaded" term
>> in the sense that it implies the application of property rights. As I
>> understand the US copyright system, "property" would be an inapt
>> description to describe what is essentially a legislative grant of
>> limited term monopoly for public benefit.
>>
>> It would, I think, be an apt term in europe where the author is
>> regarded as having innate rights.
>
> I don't see any incongruity between the notion of property and the
> intangibility of the rights represented by patent, copyright and
> trademark. A vested right in a stream of income has always been
> treated as property in the Anglo-American system: consider a
> promissory note or other security, or any right to bring a lawsuit,
> referred to as a "chose in action."
>

I think the problem is twofold:

First, intellectual property differs from real property because of its strong public goods characteristics, notably nonrivalrous consumption. This isn't the result of its intangible nature, but rather of its easy replicability (something income unfortunately doesn't have).

Second, I think the rhetoric of property has recently come to mean not common-law rights in land, but a more absolute ownership of all aspects of value. It may be this later development that John Lederer is reacting to.

Mark Lemley
Assistant Professor, University of Texas School of Law Of Counsel, Fish & Richardson, P.C.
mlemley[_at_]mail.law.utexas.edu

For information on the Intellectual Property program at UT, see http://www.utexas.edu/law/intelprop/ Received on Mon Oct 28 1996 - 22:21:45 GMT