Cold Corpses, Hot News, and Dead IP: The Reasons for and Consequences of a Legal Status of No-Property

Abstract

A strange feature of Anglo-American law is that human dead bodies do not legally belong to anyone, except insofar as a time limited "quasi-property" right permits descendants to bury the body of a deceased relative. But dead bodies are not alone in the realm of no-property. There are other matters, too, that are also un-ownable in principle, particularly those relating to intellectual efforts. Some of these efforts and achievements cannot become intellectual property (IP) at all, and others lose property status after the expiration of their IP terms; I refer to all these as NIPs (for "non-IP").

Unlike intellectual matters, which do not deteriorate with use, corpses are finite objects, and finite objects are generally subject to overuse if left in open access. One might think that human remains are unlikely to suffer overuse, not only because of their disturbing character, but also because any value they have is limited to a small number of persons, especially descendants. But in fact, for several centuries, third parties have found increasing use value in human remains, first for anatomy lessons and, more recently for medical transplantation and research.

How is the lack of property explained in the case of dead bodies on one hand and NIPs on the other? Is there any relationship between what seem to be very different kinds of subject matter? This Article examines a set of standard reasons why some things cannot be owned and argues that despite some differences, there are also unexpected parallels between NIPs and corpses with respect to their no-property status.

A standard theory of property argues that property rights evolve in things as those things become increasingly valuable. While the law halts formal property both for corpses and for NIPs, both have great value for some parties. Thus, perhaps more disturbingly, there are also parallels between the ways that interested parties attempt to evade the no-property status of corpses on the one hand and NIPs on the other. While propertization is not the only answer to these evasions, it may be that corpses are becoming more propertized, while IP is becoming less so.