Intellectual property and the bundle-of-rights metaphor

Résumé En

Intellectual property is generally understood as being a form of property that is of the same nature or at least akin to property as it applies to chattels or land in general. This nature of property assumes an absolutist and monolithic view of the scope of rights granted to IP owners, which explains an ongoing critique of such qualification of property by some scholars. Rarely is this assimilation questioned by examining the theories and conceptions underlying property as a legal institution. This essay is aimed at better understanding the distinct characteristics of intellectual property as a regime for the creation, use and exploitation of works and inventions by analytically comparing, on the one hand, the concepts upon which property in tangible and intangible subject matter rests, and, on the other, the different views held in regard of property under common law and continental civil law, respectively. More particularly, the essay puts the dominion-based concept of property of civil law in contrast to the bundle-of-rights metaphor that, over time, Anglo-American scholarship has developed as a theoretical conception of property. Taking copyright as an illustration, the essay demonstrates that the multi-faced bundle-of-rights metaphor, with its distributive and relational dimensions, is useful and flexible enough to explain how copyright organizes the intellectual production, circulation and exploitation of works. Some legal conundrums of copyright, such as the retaining of a remuneration right by the author along with the transfer of copyright to producer or publisher, could also find some answer in viewing IP as a bundle of distinct entitlements. In addition, the narrative of the bundle of rights allows a better understanding of how the exclusivity that copyright protection confers upon the author is a matter of degree and could be exercised to include and satisfy the private or public interests of other stakeholders in the use and exploitation of the work. 1