Copyright as Property

Abstract

can entail. It will be necessary to apply property theory (within legal, normative, systems 2) to the concept of copyright for the understanding of copyright as property. This aspect poses difficulties. Traditional property theorists want to apply their property conceptions to conventional private property, rather than intellectual property, 3 sometimes not even to any kind of intangible property, 4 and they tend to use copyright as the most significant example for their argument. Some intellectual property theorists prefer to see intellectual property rights not as property rights at all. 5 This diffuse scepticism is ultimately toothless. In fact, copyright is a particularly good case in point within the development of a more general property theory that enables a discussion of proprietary powers and their potential dangers in the concrete context of copyright protection. It is arguably even accurate to say that one understands the legal concept of dematerialised property and of 1 This property-based definition is followed up in CDPA 1988, s. 90: 'Copyright is transmissible … as personal or moveable property', and s. 96: 'In an action for infringement of copyright all such relief … is available to the plaintiff as is available in respect of the infringement of any other property right.' 2 The same approach by Penner (2000: 2). The discussion is with regard to property in law, thus the moral and political aspects of property are disregarded in the present context. For a recent discussion on the moral right to own intellectual property, see e.g. Wilson (2009: 393, 395) who rejects such a moral right. 3