I found some interesting commentary in James E. Penner, The Idea of Property in Law (Oxford: Oxford University Press, 1997), pp. 115–21. (Ironically, this treatise is quoted favorably by pro-IP libertarian law professor Eric R. Claeys, Natural Property Rights (Cambridge U. Press, 2025), §4.2, p. 77. ) See, in particular, pp. 118–120 (footnotes omitted; note the bolded text in particular):
These authors’ [early twentieth-century writers] views on intellectual property are similarly stimulating: not one of them embraces the idiotic fiction that intellectual property constitutes property in ideas (patents) or expressions (copyright). They see it for what it is, a certain class of rights to monopolies. Elphinstone doubts that intellectual property rights are choses in action, for they are not rights in personam, but rights against the whole world; until someone violates the right, there is no right in action, whereas in the case of a debt its very existence depends upon such a right.40 Sweet regards intellectual property as incorporeal property, but not truly choses in action for ‘their essential quality is that they are permanent property—not necessarily perpetual, but wholly different from such transient things as debts and other rights of action’; however, if one must choose to treat them as either choses in possession or choses in action, Sweet prefers the latter alternative, at least in the context of bankruptcy.41 Brodhurst goes so far as to treat them as choses in possession on the basis that the benefit that one receives by having copyright is not secured by action; one enjoys the benefit of it simply by having it, by one’s ‘constructive possession’ of it: if one’s copyright is infringed, one then obtains a right in action for what amounts to a trespass.42 Each of them is in his own way right.
Intellectual property rights are akin to choses in action because they are abstract legal rights, with no direct connection to any thing, tangible or intangible. But they are not claims to receive some share or amount of the property of others, as choses in action typically are. They are rights directly to a practice of exclusion, as directly as are property rights in chattels or land, correlating to duties in rem by which all subjects of the legal system have a negative duty not to do something. The duty is not one to refrain from interfering with material objects, but to refrain from working an invention or copying an original work or from representing one’s business or its products by a certain name or symbol.
While patents are not property rights in ideas,43 nor copyrights property rights in expressions,44 nor again trade marks property rights in symbols or words, in general it does no harm to speak of rights in ideas, or in manuscripts, or in marks, any more than it does to refer to one’s rights in one’s labour. And in the same way that labour forms part of one’s life experience, the development of an idea or the creation of an artistic work can never be separated from the inventor or artist; it remains the inventor’s or artist’s forever. The light bulb is Edison’s invention whoever makes use of it, and Bleak House is Dickens’s whoever reads it. Whatever rights the inventor or the artist has, when we start speaking of property rights in ideas and artistic works, things begin to lose sense. A true property right in an idea or an expression would constitute a right of exclusion from that idea or that expression itself. Subjects of the law would have a duty not to read about or understand an invention or take in the expression in a book or a painting (a funny notion since patents are published when granted, and a copyright is a right exclusively to disseminate a work). Intellectual property rights are monopolies defined in terms of ideas and expressions and symbols.
Treating property in patents and copyrights as property rights in monopolies that are defined in terms of ideas and expressions, rather than as property rights in the ideas and expressions themselves, may appear to be a slippery slope which would lead to all property rights being defined as rights to monopolies of some kind. As we have seen, the right to a piece of land is not completely exclusive. Passers-by may gain value by looking at one’s garden. Why, then, do we not say that the landowner has a monopoly on various uses defined in reference to the land, of course, but no direct property right in the land itself?1 Neither the land owner nor the patent holder has a complete right to all facets of use or value that the thing, the land or the idea, provides.2 The difference, however, lies in the characterization of the landowner’s and patent-holder’s respective use-rights. The landowner’s use-rights are essentially indefinable, comprising every possible use of land. One cannot draw up an exhaustive list of them, and this is true even if others like the passer-by may gain some value from the land. The exact opposite is true of the patent-holder’s use-rights. The patent is an exclusive right to a particular use of the invention or idea, that is, working it to produce goods for sale in the market.3 But this is only one of a limitless number of ways in which an idea may be ‘used’; one can study it, use it to illustrate scientific principles, use it as the basis for further inventive endeavours, and so on. That the market use of the idea is often the most valuable use in economic terms (though clearly not always, and probably rarely as a proportion of the patents that are actually granted), that does not alter the fact that it is one use only. A patent is like the ‘lease’ to extract oil mentioned at the end of the last chapter; in the same way that the lease was not really a property right in the land, the patent is not a property right in the idea or invention.
Related:
- Intellectual Property Rights as Negative Servitudes
- Are Patents and Copyrights “Monopolies”?
- IP isn’t about owning ideas; those who oppose ownership of ideas are commies
- “Objectivist Law Prof Mossoff on Copyright; or, the Misuse of Labor, Value, and Creation Metaphors,” Mises Economics Blog (April 19, 2011)
- “Hume on Intellectual Property and the Problematic “Labor” Metaphor” (April 9, 2011)
- Because there are not property rights to the value of a thing but only to its physical integrity. Hoppe on Property Rights in Physical Integrity vs Value. The author is thus mistaken in thinking this implies property rights are “limited”; that “the right to a piece of land is not completely exclusive.” —SK [↩]
- Property rights limit what actions others may perform, not other property rights. See Legal Foundations of a Free Society, ch. 15, at n.75; my criticism of the strawman of “absolute property rights” in Dominiak & Wysocki, “Libertarianism, Defense of Property, and Absolute Rights”. [↩]
- Not exactly. It’s not a right to use; it’s only a right to exclude, to prevent others. Using your own patented invention could still infringe another’s patent. —SK [↩]
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