24 Pages Posted: 23 Oct 2007 Last revised: 6 Sep 2012
We often call copyright a species of intellectual property, abbreviating it, "IP." This brief paper suggests that we consider copyright as another sort of IP: an intellectual privilege. Though copyright doubtless has some property-like attributes, it more closely resembles a special statutory benefit than it does a right, general in nature and grounded in common law, deserving the title of property. To call copyright a privilege accurately reflects legal and popular usage, past and present. It moreover offers salutary policy results, protecting property's good name and rebalancing the public choice pressures that drive copyright policy. We face a choice between two ways of thinking about, and talking about, copyright: As an intellectual property that authors and their assigns own, or as an intellectual privilege that they merely hold. Perhaps no label can fully capture the unique and protean nature of copyright. Recognizing it as form of intellectual privilege would, however, help to keep copyright within its proper legal limits.
Keywords: copyright, property theory, privilege theory
JEL Classification: O34
Suggested Citation: Suggested Citation
Bell, Tom W., Copyright as Intellectual
Property Privilege. Syracuse Law Review, Vol. 58, 2007; Chapman University Law Research Paper No. 08-37. Available at SSRN: https://ssrn.com/abstract=1023735