Rights to what? Understanding intellectual property

Understanding an area of law is all about understanding the juridical concepts from which it is comprised. When considering Media Law one must examine human rights, constitutional rights and private law rights such as those not to be defamed or libelled. However, there is one other important type of right that merits examination: rights of Intellectual Property. There are of course many types of Intellectual Property Right, such as copyright, patents, trademarks, trade secrets and creative commons but it seems worthwhile to consider the general notion of ‘Intellectual Property Rights’ in virtue of what these instantiations have in common.

The classic understanding of Intellectual Property Rights is one in which property is vested in the idea. Under this theory, I have a right in my news article because the collection of ideas expressed in the article belongs to me, in the same sense that my bike belongs to me.

There are several problems with this notion. Firstly, it would be silly to imagine that every time someone read the article in question by, for example, flicking through magazines in a corner shop, they committed a wrong similar to that of trespass or conversion. Secondly, it is difficult to explain how Intellectual Property Rights are gained if it is my ideas over which I can gain property. For example, I can gain title to a chattel by virtue of taking possession over it after it has been abandoned. Ideas cannot be ‘taken possession of’ for the simple fact that exclusion does not apply to them; many people can conceptualise the same thing at the same time. Similarly, ideas cannot be transferred from one person to another, merely communicated. When I tell you about the news article I am writing, I have not passed something on to you, but merely given you the facility to engage inter-subjectively over a particular topic.

Perhaps most importantly, viewing Intellectual Property Rights as ideas fails to explain the formality rules that very often cover the creation of the rights. For example, if I ‘invent’ a device that happens to have been invented and patented by someone else two weeks earlier, it doesn’t matter that I had no idea and that I worked tirelessly for six years on the project. In order for my patent application to succeed, my idea has to have been not only original, but also first in time. Seemingly, the fact that it was an original idea seems to have little or no explanatory value next to the fact that it was not new.

What is the alternative? Professor James Penner of University College London argues in his book ‘The Idea of Property in Law’ that an Intellectual Property Right is best understood as a right to a monopoly. This seems to better explain the formality rules that go with various Intellectual Property Rights. In the light of modern competition law only truly innovative ideas warrant the temporary immunity from competitive trade that Intellectual Property affords. Furthermore, since monopolies are market relationships and not concepts, control over them can be meaningfully transferred without incurring any of the oddities mentioned above that seem to arise out of the ‘transfer’ or ‘possession’ of ideas. This market based justification of Intellectual Property Rights greatly enhances debates of policy because it requires policy makers to focus on the instrumental usefulness of the various rules. Whether someone with an Intellectual Property Right has a right to their ideas notwithstanding such usefulness may be rightly considered a philosophical red-herring.

Of course, this still leaves open the question of whether or not focusing on the market utility of Intellectual Property in some way conflicts with the values at the heart of freedom of expression. That however, is a debate for another day.

ALEXANDER GREEN

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