Henry E. Smith
Debates over intellectual property often assume that recognition of any property element in intellectual property leads to overprotection, and that ‘governance’ is a counterpoint to the excesses of property protection. In this chapter I show that governance is itself a property device, one that not only substitutes for exclusion but often works in tandem with exclusion rights. A governance strategy allocates entitlements more directly based on use than does exclusion, and helps define modular packages of rights. For ‘fluid’ property, of which property in a nonrival resource like information is a prominent example, governance is especially important, because multiple use is crucial and it is difficult to separate out ‘things’ for property protection. The role of governance in intellectual property helps explain the difference between patent and copyright, the strengths and weaknesses of licensing, the role of equity, and the importance of group institutions.