The Multiple Levels of 'Property' in IP and Why That Matters for the Natural Versus Regulatory IP Debates

Abstract

The intellectual property field is polarized between what are variously called skeptics or minimalists, on the one hand, and pro-IP or maximalists, on the other. An important skein in this debate is as between those who view IP as purely regulatory law and those who view it as natural property. The former hold IP rights to be malleable creations of the state that exist only to generate an optimal supply of inventions and creations; any stronger rights are seen as harmful. The latter hold IP rights to be fundamental property that should be protected as other natural rights. This article argues that the two camps are talking past each other because they are focused on different levels of “property” in things we think of as IP. In fact, there are four levels of property rights in IP: inchoate or natural property rights in private knowledge, methods, or creative expression; state-issued IP title deeds (formal patents or copyrights); physical embodiments of IP as personal property; and contracts (usually licenses) regarding IP or the physical embodiments (or both). Digital artifacts, poised ambiguously between the tangible and the intangible, present a new level of confusion precisely because of this straddling of two different species of property. Ultimately this article argues that the way out of the current unhelpful polarization is acknowledgment of the different levels and a new conceptualization of IP based on them.

Keywords: IP, Property, Regulatory Property, Natural Property, Natural Law