The Concept and Conceptions of Intellectual Property as Seen Through the Lens of Property
SCIENCE AND LAW IN THE PRISM OF COMPARATIVE LAW, pp. 269-295, G. Comandé, G. Ponzanelli, eds., Torino, Giappichelli, 2004
27 Pages Posted: 10 Feb 2011
Date Written: 2004
In this thought-piece, I shall approach this phenomenon from the perspective of analytic property theory, using the structures of Quebec Civil law property as an interpretive model. That is, I shall run the formal structures of intellectual property through the gauntlet of analytic property theory. In general it is my view that the conceptual and formal structure of Quebec Civil law can be readily adapted to help understand the nature and categories of intellectual property. A similar analysis could also be undertaken with Common law structures, and though my focus remains the Civil law I shall allude to these comparisons from time to time in this essay. Moreover, the application of property law structures and concepts to intellectual resources will help us to better understand the concept of intellectual property in its various manifestations.
The goal of this analytical exercise is examine the phenomenon of intellectual resources - the concepts and conceptions of intellectual property, if you will - allowing for a deeper analysis of the comparative justifications for each conception, the comparative scope of rights and responsibilities in each category, as well as the choice of governance tool and institutional design of the chosen regulatory instrument. For example, an important part of the coherence of a secured lending scheme will depend on whether the subject-matter of the secured lending arrangement is a property right, or real right in Quebec Civil law terms, or some other patrimonial right. The creditor of the former will be better protected than the latter. In addition, such an analysis ought to help in the choice and adaptation of regulatory instruments to meet new challenges - changing technology for instance - and help to identify areas where the panoply of intellectual property "tools" is insufficient, and where new categories are necessary. In the Canadian context there may also be constitutional implications to the classification. It is thus of capital import to understand more clearly the nature of the intellectual property interests at the outset, both in terms of relations and objects.
Truly understanding and analyzing the nature and structure of intellectual resources is a vast enterprise touching upon the varying nature of intellectual resources, the social goals of society and the formal structure of property law. This essay has the rather modest task of shedding some light on the latter: the formal tools available from property analysis and Civil law property. Though the essay will allude to some of these larger fundamental issues of intellectual property governance - it must, as the form of property analysis is largely dependent on such basic ethical questions - the argument will not address them directly.
Keywords: intellectual property, property, Quebec civil law
Suggested Citation: Suggested Citation