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.
Edited by Kenneth Ayotte and Henry E. Smith
Thomas W. Merrill and Henry E. Smith
Avoiding the reduction of property to a bundle of rights or to the working out of a single master principle, the architectural theory of property sees property as an integrated system or structure anchored in certain unifying principles. Because our world is neither chaotic nor additively simple, property law and institutions must achieve their plural ends in a fashion that manages the inherent complexity of the interaction of valued resource attributes and human actions. In managing complexity, some of the law’s structures receive functional explanations and justifications that differ from the explanations and justifications that apply to the system as a whole. In working as a whole, the system exhibits a number of tightly interwoven design principles, including: the centrality of things, rights to exclude and possession, hybrids of exclusion and governance, modularity, differential formalism, standardization and the numerus clausus, and “property rule” protection and equity. The architectural approach allows us to revisit some basic questions in property theory and to capture the dynamic reality of property law and institutions.