Vested Use-Privileges in Property and Copyright

Abstract

The notion that, “If it’s mine, I can do whatever I want with it” continues to have strong popular appeal as describing one of the implications of property ownership. Indeed, this notion is coming to be pressed into service as a source of normative objection to the scope of certain intellectual property laws which have the effect of limiting what consumers can do with chattels they otherwise own. Yet in property theory the status of use-privileges has long been dubious, with the right to exclude instead taking center stage. This essay considers the nature of a “vested use-privilege” from both analytical and positive law perspectives, offering both a formal account of what it would mean for such an entitlement to exist or be infringed and a discussion of both the extent to which such an entitlement actually exists in current property law and the extent to which copyright law should be regarded as conflicting with it.

Keywords: property theory, use-privileges, copyright, first-sale, Hohfeld

JEL Classification: K11, K39