Toward a Unified Theory of Intellectual Property: The Differentiating Capacity (and Function) as the Thread That Unites All its Components

Abstract

The absence of a reliable and coherent theory of intellectual property has given rise to conceptual misunderstandings and, in particular, has led policy makers to make poor choices as regards the formulation of decisions on its protection and enforcement. This article proposes a new approach to the definition of intellectual property. Basically, it suggests that, contrary to the general view, there is a thread that unites all the components of intellectual property. That thread consists of the differentiating capacity and function of those components, in addition to their intangible nature and susceptibility of use in activities of an economic nature. It is therefore purported that intellectual property is about differentiation, whether it deals with invention and creation or not. Once it is accepted that intellectual property is not necessarily an incoherent bundle of rights in intangible assets of many sorts, its intrinsically pro‐competitive nature becomes a matter of course. The crucially important notion that intellectual property is part of the social fabric of free and organized societies becomes also an almost self‐evident matter.