Does It Matter Whether Intellectual Property Is Property?

Abstract

Every now and then, the rather discrete and insular world of scholars who care about intellectual property rules turns its collective attention to whether intellectual property is really property at all—or, to put the matter consistently with the vagaries of the field, whether intellectual property (whatever that is) is property (whatever that is) in the same sense that other things are property (whatever that is). Professor Brennan's rather refreshing paper provokes these thoughts, confusing though they may sound, because it is another effort to ask the same question, albeit from a different direction. I will comment not so much on his analysis, which, for the most part, seems to me correct, as on some of the implications of the debate itself. As I said, scholars write about whether intellectual property is property. Nobody else seems to care. Certainly practitioners and judges—the traditional audiences for legal scholarship—are more concerned with the proper adjustment to Section 103 of the Patent Act to take account of university research styles than with whether what those university researchers happen to discover is properly considered "property."