Law of the Line

What is intellectual property?

In law, “property” does not refer to a particular material thing, but rather to the rights and interests in the thing. Those rights and interests can apply to an object, to real estate, or even to ideas and creations. The latter are often referred to as “intellectual property.”

Property may be thought of as the right to exclude others. You may have an unrestricted right to use a public park without owning it; you may use it, but you may not exclude others from it. In contrast, your backyard is your property – you have the right to tell others to stay out. If necessary, the state will send officers to assist you in enforcing that right. That is, in a significant sense, the key to property: it is the right to exclude others.

Property rights in ideas can be troubling. How do you exclude someone else from using your idea? Thomas Jefferson thought ideas should be free, and wrote: “If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea.”

Jefferson lost this debate, however. In the Constitution, a variety of federal and state statutes, and the common law, inventions and works of authorship are protected and their owners have in them certain property rights. In essence, inventors and authors are, in certain circumstances, granted a form of government monopoly.

There are two basic theoretical justifications for this government monopoly. One is the natural law theory and goes back to the view that property rights arise from the labor one contributes to create the property. If I build an oak table, it is mine; similarly, if I build a data table, I may believe it to be mine. The second justification is the economic incentive theory. By rewarding useful inventions and creations, the welfare of the community is increased.

Intellectual property generally includes copyrights, trademarks, trade secrets, patents and rights of privacy and publicity. Each of these areas of law has its own distinctive characteristics, although generally finding its conceptual basis in natural law or economic incentive theory.

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