Chapter 9: Intellectual property rights
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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