Of Harms and Benefits: Torts, Restitution, and Intellectual Property

Abstract

COPYRIGHT and patent take the form of ordinary property. As tangible property has physical edges, intellectual property statutes create boundaries by defining the subject matters within their zone of protection. As real property owners have rights to prevent strangers from entering their land, intellectual property statutes and case law grant owners rights to exclude strangers from using the protected work in specified ways. As tangible property can be bought and sold, bequeathed and inherited, so can copyrights and patents.' But does this similarity of form mask an inconsistency of function? Justifications for tangible property typically refer to the internalization of both positive and negative effects, but justifications for intellectual property tend to be more one-sided. Legal protection for intellectual products is based on the benefits the producers generate: from a fairness point of view it is argued that persons who create works of value deserve to be