The Idea of Property in Intellectual Property
52 UBC L Rev 891 (2019)
52 Pages Posted: 30 Apr 2019 Last revised: 15 Nov 2019
Date Written: February 12, 2019
With recent developments in technology, the nature of intellectual “property” law is constantly evolving. Yet, there remains a distinct recognition among legal scholars that the origin of intellectual “property” rights (“IPRs”) is rooted in traditional concepts of property law. Such a qualification presents significant challenges in the legal sphere as it paints a false picture of the scope of these rights, and the entitlements of rightsholders. Specifically, as right holders resort to traditional property law concepts, they erroneously presume complete ownership or mastery over the object of their IPRs. This presents a major threat to both the freedom of expression and freedom to information. This article considers the interface of IPRs with the concept of property under North American common law. Following the introduction to IPRs in Part I, in Part II, I argue IPRs have undergone a proprietary drift away from their initial rationales. In Part III, I revisit the role of property law in recognizing various assignable rights. Finally, in Part IV, I argue that in order to reconcile IPRs with these traditional concepts of property law, IPRs can be recognized as choses in action, giving IPRs the underlying principles of tort and the assignability of property rights. This article aims to change the discourse of IPRs away from analogies using traditional property law concepts towards recognition of the evolving rights they protect.
Keywords: property, common law, intellectual property, choses in action, functional approach, theory
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