Law and Economics for Civil Law Systems

Law and Economics for Civil Law Systems

Ejan Mackaay

Ejan Mackaay offers a comprehensive look at the essential points of economic reasoning, the Coase Theorem, and legal institutions such as intellectual property, extra-contractual civil liability and contracts. The book’s structure mirrors the way law is taught in civil law countries, with structured presentations, references to civil code articles paired with non-technical explanations, and limited reliance on graphs. This English-language version builds on the success of the author’s 2008 French-language textbook on law and economics from a civil law perspective.

Chapter 9: Intellectual property rights

Ejan Mackaay

Subjects: law - academic, comparative law, law and economics


The term ‘intellectual property’ designates a set of rights, each of which gives the title holder exclusive control, in specific ways and for a limited time, over an intangible object resulting from human creativity. Is intellectual property a form of property? During the French Revolution, intellectual property was initially seen as one of the purest expressions of the idea of property. In preparing the Loi du 19 juillet 1793, which gave authors copyright, the Rapporteur Lakanal wrote: ‘Of all forms of property, the least challengeable is indisputably that of products of the intellect, and what may surprise is that this form of property needed to be recognised and its exercise ensured by positive law.’1 However, the view of intellectual property as the purest form of property was not accepted in practice, as Carla Hesse has shown in her brilliant historical study of cultural policies during the French Revolution.2 Elsewhere it did not last long either, even in France. Roubier points out that half a century on, in the Loi du 5 juillet 1844 on patents and the Loi du 14 juillet 1866 on copyright, the legislator systematically refrained from using the term ‘property’.3 The relationship between intellectual property and ‘ordinary’ property of tangible things is the first issue that this chapter will need to clarify.

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