Table of Contents

Individualism and Collectiveness in Intellectual Property Law

Individualism and Collectiveness in Intellectual Property Law

ATRIP Intellectual Property series

Edited by Jan Rosén

Individualism and Collectiveness in Intellectual Property Law embraces fundamental, eternal and yet very contemporary elements in IP law dealt with in all parts of the world. There are certain classic values embedded in the protection of human effort and the creativeness of individuals. This book examines the relationship of those values to the questions inherent both in individual creativeness in a collective setting, and in the tendency to build national, regional or global monopolies based on IP rights. The respect for original ownership, the occasional need for collective management of IP rights, the idiosyncrasies of co-ownership of rights and the ever present tension to be found in encounters between exploitation of IP rights and competition law are extensively exposed in this book.

Chapter 1: Individual, Multiple and Collective Ownership: What Impact on Competition?

Reto M. Hilty

Subjects: law - academic, intellectual property law


Reto M. Hilty* Dealing with different forms of ownership is an appealing challenge today. In fact, awareness seems to be growing that “property” – leading to ownership – is not a predetermined concept. The content of “property” does not ensue by nature, but must be defined by law. “Property” can notably be limited in time and scope in order to pursue specific objectives in the public interest. For “property” as an institution should undoubtedly not solely realise the individual purposes of its owner (or owners); ownership, in whatever form, must ultimately take into account the social momentousness of the institution “property”.1 This insight per se, however, does not provide a clear legal framework; instead, a great number of related issues can be grouped under the heading “ownership”. And the discussion on what ownership – or property – shall encompass is, of course, also not new; on the contrary, substantial research in this area has already been accomplished.2 If we want to narrow * Director, Max Planck Institute for Intellectual Property and Competition Law, Munich; Professor at the Universities of Zurich and Munich. The author wishes to thank Felix Trumpke, Scholarship Holder at the Max Planck Institute for Intellectual Property and Competition Law, for his valuable support, especially with regard to searching for documents. 1 In this sense Jefferson: “[. . .] the exclusive right as given not of natural right, but for the benefit of society [.  .  .]”, Thomas Jefferson to Isaac McPherson, 13 August 1883, in: Lipscomb/Bergh (eds.), The Writings of Thomas Jefferson, Vol. XIII, Washington 1905, at...

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