Distinguishing Different Kinds of Property in Patents and Copyrights

Abstract

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.