EDITORIAL

THE CONCEPT OF PROPERTY

Two articles touching on the subject of "property" from a wholly different standpoint have been covered in recent digests in PTC Forum. One was concerned with trade marks [20072], the other with copyright [20074]. One was overtly philosophical in its approach, the other mainly concerned with the practical problems of legal protection. One was determined to challenge the concepts underpinning intellectual property protection, the other to defend the general concepts on which existing laws were usually based.

However, both articles were concerned with the problems created by adopting the concept of property in relation to trade marks and copyright (and, by extension of similar principles, to patents as well). The article on copyright ends on a note familiar to intellectual property experts, but questionable on grounds of strict logic. "Thou shalt not steal!" Or, to put it in less histrionic terms, it is as culpable to infringe a person's copyright as it is to steal a person's cow. If, indeed, intellectual property is a genuine form of property; if ownership of the property is absolute; and if the process by which copyright is infringed is in all cases strictly comparable to an act of larceny, the proposition is unimpeachable. But each of these elements of the proposition can be questioned.

Before going any further, it is as well to deal with the objection that this whole discussion really does not matter. But to some extent it does: most commentators, even those most committed to a conservative view of intellectual property rights, are increasingly coming to recognise that new legislation - and in particular legislation designed to accommodate legal protection to the advances in technology, discovery and ingenuity, - must have some kind of logical, social and (ultimately) philosophical basis, if it is to have any genuine validity and consistency. At the same time, from a social point of view, legal categories are less important than social realities: it is more important for the interests of consumers and copyright owners to be fairly balanced than for the concept of property to be artificially strained.

Twenty years ago, some influential intellectual property experts were highly distrustful of what was scornfully referred to as "consumerism". (The first edition of International Copyright Law, edited by Stephen Stewart, was a case in point.) At about the same time, many intellectual property experts thought that anti-trust laws could or should not impinge on intellectual property rights. (Discussions in WIPO reflected this belief.) Now, it is only too apparent that both factors represent powerful elements in the definition and scope of intellectual property protection. Just as Humpty Dumpty said that he made words mean what he wanted them to mean, so modern legislatures can make legal rights mean what society wants them to mean. Statutes may continue to use the expression, "property", in relation to patents, trade marks and copyright; but that may be no more than a legal convenience or at worst a pious declaration. The reality, and the new philosophy, will be in the small print. [10011]