Working Paper No. 14-31:
Intellectual Property and Property Rights
Date Posted: August 2014
Abstract (below) | Full text (most recent) on SSRN
This essay is the introductory chapter to Intellectual Property and Property Rights (Edward Elgar, 2013), which contains some of the leading articles published in recent years on the nature of patents, copyrights, trademarks and trade secrets as property rights. But this essay does not merely review the articles. For the first time in a single essay, it presents the three basic analytical frameworks in which intellectual property rights are defined or justified as property rights – historical, conceptual, and normative.
Drawing upon the substantive content of the articles in the volume and beyond, the essay first reviews the two descriptive framings of intellectual property rights, explaining that intellectual property rights historically have been defined and justified as property rights since the eighteenth century and that there are serious analytical reasons why intellectual property is defined conceptually in this way. The essay then explains how these two descriptive bases – the historical account and conceptual definition – provide a foundation for the two normative justifications for intellectual property as property – the utilitarian and labor-desert theories. Ultimately, the essay summarizes the substantive theoretical case for intellectual property as property, and it also briefly summarizes the critique of intellectual property from the perspective of property rights advocates.