Distinguishing Different Kinds of Property in Patents and Copyrights

55 Pages Posted: 28 Apr 2020 Last revised: 20 May 2020

See all articles by Seán M. O'Connor

Seán M. O'Connor

George Mason University - Antonin Scalia Law School

Date Written: March 1, 2020


Academic debates over intellectual property as “property” seem to assume only one kind of property. Based on original historical research, this Article shows that different kinds of property have accreted over time in at least patents and copyrights. A fundamental right to keep ideas, expressions, and inventions private established a natural law property-type right from Greco-Roman times. Statutory regimes akin to regulatory property designed to encourage creators and inventors to make their works available to the public emerged during the medieval and Renaissance periods. Copies embodying copyrighted expression or patented invention were considered part of those exclusive rights during much of the Enlightenment before being deemed to have their own individual chattel property title. And finally, contracts conveying copyright or patent rights have their own property attributes. This Article argues that understanding the different kinds of natural and regulatory property in intellectual property will help IP skeptics and proponents bridge the acrimonious gap between them.

Keywords: IP, Intellectual Property, Private Law, Natural Law, Property, Natural Property, Regulatory Property, Copyright, Copyright Law, Copyright Rights, Patent, Patent Law, Patent Rights

JEL Classification: K11

Suggested Citation

O'Connor, Seán M., Distinguishing Different Kinds of Property in Patents and Copyrights (March 1, 2020). 27 Geo. Mason L. Rev. 205 (2019), George Mason Legal Studies Research Paper No. LS 20-06, Available at SSRN: https://ssrn.com/abstract=3565272 or http://dx.doi.org/10.2139/ssrn.3565272

Seán M. O'Connor (Contact Author)

George Mason University - Antonin Scalia Law School ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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