THE IDEA OF PROPERTY IN INTELLECTUAL PROPERTY.

• Author: Martin-Bariteau, Florian

1. INTRODUCTION

   Since their inception, the nature of intellectual property rights (IPRs) has been widely discussed by academics and courts. Many proposals have been made with respect to the nature of these rights, from monopolies, to torts, to property. However, during the course of the 20th century, a proprietary drift situating IPRs in the realm of property took over other approaches. Thus, today, IPRs are most often discussed with respect to property law. (1)

   Breathing new life into these developments may surprise some. Indeed, the debate never ignited passions within the common law, with the exception of some discussions in the 19th century. (2) It has been said that common law's pragmatism will have, perhaps, brought it more quickly to less theoretical considerations. (3) One could argue that compared to other legal systems, the common law places less importance on taxonomies. Nonetheless, the common law is familiar with them. The common law was built on a tradition of determining classifications for actions in order to apply particular legal tests, admittedly creating a very disparate landscape. Although disparate, the arrangement of legal terms into established categories has consequences in a legal system that constantly evolves through analogies and distinctions. Placing IPRs into an established legal category "can provide insights, analogies and history that help to understand more thoroughly ... intellectual property." (4) In addition, it allows for the rights to reflect a developed history and a functional rationale. (5) The avoidance of theoretical debates might have led to a rapid analogy of IPRs to traditional properties with unfortunate consequences.

   As Henry E. Smith recently pointed out, "[a]t the core of [the] controversies over the correct scope of intellectual property lie grave doubts about whether intellectual property is property." (6) However, I argue the issue does not reside in the classification of IPRs as property rights per se. Rather, issues arise as individuals have attached to this classification entitlements belonging to traditional property rights with IPRs. For example, some have sought to situate the rationale of IPRs within the scope of William Blackstone's "sole and despotic dominion." (7) This caricature of the archetype of property rights has little, if any, connection with the reality of property rights. Nonetheless, this vision of property rights is embedded in the minds of scholars and legal practitioners alike and persists in current legal discourse. As a result, this archetype, and caricature of the rights of ownership, are imbued onto IPRs. (8) I argue these analogies directly conflict with the nature of IPRs and have profound consequences in practice.

   The qualification of IPRs and their arrangement within the traditional concepts of property law affect judges' margin of interpretation for the protection of these rights. Rightsholders have successfully used the property metaphor as a rhetorical and ideological means of extending their rights, both in scope and duration. (9) While these efforts were mostly focused on copyright and patents, this trend has now been taken up by the field of trademark law, (10) notably through the "Schechter virus" (11) and the multitude of new "functions" proposed by academics and judges in US, Canadian, and European law. (12)

   Beyond theoretical considerations, the classification of IPRs is of societal interest. The vision of "IP" within society is symptomatic of the importance of the philosophy attached to a right. As James Grimmelmann has pointed out, these "ethical visions" of IPRs are of the utmost importance. (13) In order to balance interests related to rights such as IPRs, citizens' perceptions of their rights and prohibitions are essential. (14) These rights are the reflection of the social imaginary. (15) Yet, proprietary language "affectfs] the persuasiveness of our policy arguments in the public arena" and allows for "provocative claims about what intellectual property law ought to look like." (16)

   I argue that the semantic, conceptual, and philosophical attachment of IPRs to the traditional concept of property paints an erroneous, if not misleading, image of IPRs. (17) The rhetorical function of language connecting IPRs with traditional property law concepts has been noted by authors, (18) as well as some courts. (19) Following this rhetorical shift, the practice of IPRs has moved away from the initial rationale that commanded their creation.

   The promotion of this proprietary philosophy may have misled the public about the type and extent of entitlements provided by IPRs. In a society where the threat of a trial may put an end to a behaviour because of the cumbersome and costly nature of proceedings, there remains a real risk of infringement on fundamental freedoms for citizens, notably the ability to access information or to express criticism. (20) There is certainly an informational dimension to this issue, and educating citizens and consumers cannot be done without putting a stop to the absolutist tendencies of IPRs' rightsholders striving for such powers.

   These unduly propriety-focused and absolutist tendencies have induced a movement rejecting the justification and functioning of IPRs. (21) However, the present essay does not aim to challenge the mere existence of IPRs, nor to join a chorus claiming that "property is theft !" (22) As such, it is beyond the scope and purpose of this paper to provide a detailed review of all theoretical justifications of IPRs, many of which are grounded in property theory. (23) This paper will neither address the debate around the justification of property or IPRs--often rooted in the Lockean approach of property. (24) Instead, this paper aims to critically analyze the qualification and rationale of such rights in relation to the common law concept of property.

   This essay will discuss the particular interface between IPRs and the concept of property under North American common law, adopting a functional approach. Due to the development of the common law, the discussion will be informed by authors and cases from other jurisdictions, namely the United Kingdom and Australia, which are often referred to by previously cited works. (25) Following this introductory part, Part II presents the proprietary drift to which IPRs have been subjected and describes how IPRs subsequently lost their initial rationale when property discourse took precedence. I challenge the analogies made between IPRs and traditional property concepts in general, and real property in particular, as they have perverted the internal logic of IPRs. Nevertheless, it is not so much the attachment of IPRs to property law concepts and discourse that I reject. Rather, I argue the entitlements created by the analogies used to map IPRs to traditional property rights are troublesome. It is problematic when individuals holding IPRs presume complete ownership or mastery over the object of their IPRs. Further, one must not see the concept of property as a uniform block of rights set in stone under traditional property law. Part III proposes to revisit the concept of property and to discuss what property rights actually are in their diversity, positioning "property" as an umbrella concept for assignable rights. This paper harnesses James Penner's approach to property as assignable rights and applies it as a mechanism for explaining the tenuous relationship between IPRs and property. Building on that approach, in Part IV, I propose to reconcile IPRs with the concept of property. I argue IPRs amount to property, but only as cboses in action, a mixed category offering the flexibility and richness they need: the rationality of a tort with the assignability of properties.

   Certainly, leading authors in property law scholarship appear to take for granted that IPRs are choses in action. (26) However, this is not an approach to be found within most IP scholarship even though, for some rare legal scholars, this position was settled in the sixteenth century. (27) Moreover, it seems that the demonstration has yet to be made, at the very least under current statutory and case law frameworks. (28) As such, this paper highlights that the current North American statutory framework does not classify IPRs as being more than mere choses in action for assignability purposes, nor does the case law of the Supreme Courts in either Canada or the United States.

   Furthermore, this paper undertakes an unusual global approach to IPRs and a functional approach to property. The question of IPR classification has rarely been studied in a comprehensive way. Too often, studies regarding the nature of IPRs have been locked into a particular IPR--usually copyright--before being applied in extenso to other rights. (29) By contrast, this essay proposes to discuss the common law legal nature of the four main IPRs: copyright, trademark, patent, and industrial design rights. Admittedly, these IPRs each present their own peculiarities and do not share the same functional characteristics. Specifically, "patent law supports practical inventiveness; copyright law protects artistic, musical, and literary originality; industrial design law encourages originality in product design; while trademark law enables and enforces accurate branding and deters marketplace fraud and confusion." (30) Although the rationale for each IPR may not be identical, IPRs share "common principles of ownership, management, and enforcement, with specific provisions to regulate how IP's components--trademarks, patents, copyrights, designs, etc.--are acquired and what rights attach to each." (31) As Lionel Bently explained, '"intellectual property' has rapidly moved from being a category of laws developed for the convenient presentation of distinct legal regimes into a legal concept--a category in law." (32) Furthermore, coherence in the law invites us to retain the same qualification for all...