It occurred to me the other day that the best way to classify the legal nature of intellectual property rights such as patent and copyright is the civil law doctrine of negative servitudes. Patent and copyright permit the holder of these rights to prohibit certain uses of their own property. For example, in the case of patents, NTP, by virtue of its patents, could prohibit RIM from making Blackberry smartphones (using its own property, even its own designs)–and could use this veto-right to extract $600M from RIM to permit RIM to use its own property as it wanted to. And Genzyme can prevent competitors from making a drug similar to Fabrazyme, because of its patent monopoly (because it’s a life-saving drug in short supply, this is helping to kill people). In the case of copyright, for example, J.D. Salinger, author of Catcher in the Rye, convinced U.S. courts to ban the publication of a novel called 60 Years Later: Coming Through the Rye.” And in Canada, when a grocery store in Canada mistakenly sold 14 copies of a new Harry Potter book a few days before its official release, a judge “ordered customers not to talk about the book, copy it, sell it or even read it before it is officially released at 12:01 a.m. July 16″ (on both cases, see Atlas Hefts: The Sequel!).
In all these cases, the patent or copyright holder obviously has a legal veto over certain uses others may make of their own property (their smartphones, their bodies, their paper and ink, their books).
This is strikingly similar to what is called a negative servitude in civil law jurisdictions such as Louisiana, and to what is called a negative or appurtenant easement in the common law. See the definitions below, taken from my Louisiana Civil Law Dictionary (with Gregory Rome, forthcoming 2011, Quid Pro Books) (entries to the Louisiana Civil Code articles cited below can be found online here):
Negative servitude. A predial servitude “impos[ing] on the owner of the servient estate the duty to abstain from doing something on his estate.” La. C.C. art. 706.
Predial servitude. A “charge on a servient estate for the benefit of a dominant estate.” La. C.C. art. 646. The two estates must be owned by different owners. Predial servitudes are either apparent or nonapparent. Similar to an appurtenant easement at common law.
Servient estate. The land burdened by a predial servitude. See La. C.C. art. 646.
Apparent servitude. A predial servitude that is perceivable by “exterior signs, works, or constructions,” e.g., a road or a window in a common wall. La. C.C. art. 707.
Nonapparent servitude. A predial servitude without any outward sign of its existence, e.g., building restrictions. La. C.C. art. 707.
Conventional servitude. A servitude established by contract. See La. C.C. art. 654.
Personal servitude. “A charge on a thing for the benefit of a person.” La. C.C. art. 534. The three major personal servitudes are usufruct, habitation, and rights of use.
The common law concept of appurtenant easement is similar. It’s defined at law.com as follows:
appurtenant easement: adj. pertaining to something that attaches. In real property law this describes any right or restriction which goes with that property, such as an easement to gain access across the neighbor’s parcel, or a covenant (agreement) against blocking the neighbor’s view. Thus, there are references to appurtenant easement or appurtenant covenant.
The common law equivalent of a negative servitude would be be a negative easement (like a restrictive covenant).
These legal concepts apply to immovable property or realty such as land, but the essence is that a negative easement gives the owner of one estate the right to force the owner of the servient estate to abstain from doing something. Such property rights are perfectly legitimate if established voluntarily, by convention or agreement (see La. C.C. art. 708). But it is obvious that giving someone a negative servitude would be a taking of some of the property rights of the owner of the servient estate–a redistribution of property. If B gets a veto right over how A uses his property, this is legitimate only if A voluntarily agrees to it.
Now the parallels between patent and copyright and negative servitudes should be obvious. The concept does not apply exactly: first, negative servitudes apply to land (immovable or realty), not movable property or personalty, while patent and copyright apply to all types of corporeal property: to how one may use his immovable property (land and factories) and well as movable property (computer, paper, and even one’s own body). Further, while a negative servitude is a predial servitude that gives the veto right to whoever owns a given tract of land known as the dominant estate, patent and copyright give the veto right to a designated IP holder; so in this respect, patent and copyright are more like a personal than a predial servitude. The positive law does not have an exact parallel to categorize IP in terms of servitudes precisely because the state grants IP rights and considers them valid, and to treat them as servitudes would make it obvious that they are illegitimate since they are not voluntarily agreed to.
Finally, it is also clear that IP is more like a nonapparent than an apparent servitude since there is no outward sign (on one’s body or property) that one is unable to use it in ways prohibited by the holder of the patent or copyright.
The best way, then, to categorize patent and copyright legally would be to view them as nonapparent negative personal servitudes: a nonapparent charge on a servient estate (that is, the land, personal property, or body of some person) for the benefit of the holder of a patent or copyright, where the charge imposes on the owner of the servient estate the duty to abstain from doing something on or with his property/estate.
In other words, it is quite clear that patent and copyright divest owners of property (and self-owners of their bodies) of some of their property rights by assigning to IP holders a negative personal servitude that was never purchased by the holder or contractually or voluntarily sold by the original owner. This helps make it clear that IP robs people of property rights.