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I have an Invention ... Now What?
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   Can property law principles be applied to IP?
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   Author  Topic: Can property law principles be applied to IP?  (Read 1939 times)
JimIvey
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Re: Can property law principles be applied to IP?
« Reply #10 on: May 5th, 2007, 11:01am »
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on May 5th, 2007, 2:59am, Peiwen Chen wrote:
If IP law exists for one reason only - to benefit the public - cant it also be argued that IP law exists to benefit individuals? given the basis of our law system is the western liberal theory, which centres around the individual? Isnt property and intellectual property about the feasibility of limitations on others' freedom of action?

Sure.  Anything can be argued.  It can be argued that Adolf Hitler and Pol Pot were both great philanthropes.  It can be argued that human experience of time is actually backwards to the way time exists in the universe.  It can be argued that UFOs are actually humans from the future with the ability to travel time (I've actually heard that one).
 
I'm not a policy maker or a law maker.  I just do my best to understand the rationale behind the law as it exists to the extent it's useful in understanding the overall structure of the law.
 
on May 5th, 2007, 2:59am, Peiwen Chen wrote:
Also, looking at distinctions between IP and property. Isnt IP a negative right, whereas, property is a positive right?

No, absolutely not.  All property rights are negative rights -- the right to exclude others.  All property rights -- intellectual, real, and personal -- share the same basic rationale, namely, the right to exclude makes investment in the object of the property rights less risky and therefore encourages such investment.
 
Regards.
« Last Edit: May 5th, 2007, 11:02am by JimIvey » IP Logged

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Re: Can property law principles be applied to IP?
« Reply #11 on: May 5th, 2007, 3:28pm »
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"All property rights are negative rights -- the right to exclude others."
 
In a free enterprise system the starting point is that we are allowed to make or sell or use anything, then restrictions ... IP, real property laws, and so forth limit that right.
 
But historically, in many places, wasn't the starting point that everything belonged to the crown; and didn't a patent from the crown grant the positive right to make or sell or use a product?  
 
That philosophical change might be the basis of an interesting report.
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Richard Tanzer
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Peiwen Chen
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Re: Can property law principles be applied to IP?
« Reply #12 on: May 6th, 2007, 11:36pm »
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'But historically, in many places, wasn't the starting point that everything belonged to the crown; and didn't a patent from the crown grant the positive right to make or sell or use a product? '
 
Even if historically, things such as land belonged to the crown, therefore they can be/might be classified as 'positive rights', are intellectual property - such as patents, copyrights adn trademarks - government granted 'negative' rights - that is, restrictions on what the public can do regarding certain designs, creative artworks, etc.
 
 
'That philosophical change might be the basis of an interesting report. '
 
also, what do you mean by philoshophical change? in fact, I am trying to write an interestin g(if possible) research essay on teh connection between property principles and intellecutal property...I am a law student with a deep interest in property law (hence this essay) but I just dont see why intellectual property is the same as property? Would it be fair to argue that both real/personal property and intellectual property are responses to the needs of society? the need to regulate human behaviour and maintain efficiency?
 
regards.
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Isaac
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Re: Can property law principles be applied to IP?
« Reply #13 on: May 7th, 2007, 9:31am »
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on May 6th, 2007, 11:36pm, Peiwen Chen wrote:
but I just dont see why intellectual property is the same as property?

 
Nobody is saying that mental creations are the same as real estate.  But what we refer to as real property is the set of rights attached by law to real estate and not the land itself.  Similarly, intellectual property refers to the rights associated with intellectual creations.   Viewed in that way, arguments about whether the rights are the same should not take very long.   We all agree that the surrounding laws are very similar.   We also know that the reasons for the similarities in each case are economic.   It's also likely that we'd mostly agree on what those economic reasons are.
 
What you seem to be arguing is that the rights protecting land and ideas and inventions should not be similar because ideas are different from dirt in ways important to you or at least in ways that are the focus of your paper.   Certainly you can write a paper on that basis, but unless the paper also addressed the economic reasons behind why property rights are as they are, I wouldn't personally find such a paper persuasive or particularly interesting.
« Last Edit: May 7th, 2007, 12:09pm by Isaac » IP Logged

Isaac
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