Owning What Doesn’t Exist

Abstract

To a teacher of intellectual property, it is fascinating to listen to a day of debate about a thing called "property" that everyone seems to agree is something that one can hold or hide or fence off. To teach intellectual property—to think seriously about intellectual property—you have to brush aside a vision of concrete, tangible things in which the possessor might be vested with a number of rights, the "bundle" of rights so dear to our discourses. And you have to step away from the marvelous vision that private ownership of property, and lots of it, is the very fundament of a democratic and free society, not because the vision is wrong—on the contrary, it has much to recommend it—but because, in teaching intellectual property, it is largely beside the point. Intellectual property, as I like to tease and maybe even teach my students, might best be described as a system of rights in things that are not really there, which is why I often describe the proprietary rights that intellectual property rules vest as owning what doesn't exist. It is precisely because intellectual property involves rights in intangible things that it is so difficult to justify intellectual property rules with the same arguments used to justify a system of property rights in things that you can hold in your hand or hide from your neighbor or fence off.