Property Aspects of Intellectual Property

Ole-Andreas Rognstad is a Professor at the Department of Private Law in the Universitetet i Oslo, Norway.

Part I. Introduction: Part 1. Three Property Aspects of IP Law; Part II. Property in Justifying Rights: Introduction: A. Utilitarian Justification Grounds: 1. The tragedy of the commons vs. the tragedy of the free rider; 2. Trademarks and trade secrets; 3. Costs vs. benefits; 4. The doctrine of property vs. liability (and inalienability) rules; 5. The notion of modularity in property law; B. The Labor Idea: 1. Locke and the notion of 'moral desert'; 2. Alternative readings of Locke; 3. The 'labor idea' as a justification for modern IP; C. Personality and Personhood Ideas: D. Other Ideas: Part III. Property in the Structuring of Rights: Introduction: A. The role of 'Thingness' in Property; B. The Notion of IP as 'INTANGIBLES': 1. General Remarks; 2. Revealing the Nature of 'Intangible IP': The Scandinavian Post-WWII Discussion and Beyond; C. The Structural Particularities of Various IP Rights; D. The Object Function in IP Law – Distinction Between 'concrete object' and 'legal object' (Rights in REM); E. IP as 'Monopolies'?; F. The Concepts of 'resource' and 'information' in Relation to IP: 1 The concept of 'resource' in relation to IP; 2. The concept of 'information' in relation to IP; G. Exclusive Rights and Remuneration Rights in IP Law; H. Conclusion – on Property in the Structuring of Rights: Part IV. Property as Assets: Part II. Implications of the Three Aspects of Property: Part V. Conclusions to be Drawn from the Justification of Rights: Introduction: A. Conclusions Drawn from Common Grounds of Justification: 1. Utilitarian grounds; 2. Labor idea; 3. Personality ideas; B. Problems with Different Justification Grounds; C. Justifying IP in the International Context; D. Conclusion; Part VI. Conclusions to be Drawn from the Structure of Rights: Introduction: A. The Relation between Justification and Structure; B. 'IP Boundaries'; C. Abstraction Levels in IP Law: 1. General remarks; 2. Abstraction levels in copyright; 3. Abstraction levels in patent law; 4. Abstraction levels in trademark/trade names law; D. The Concept of 'Use'/'Exploitation' of IP Law – in Particular in Relation to Copyright: 1. Outline; 2. Problems relating to exploitation rights in copyright; 3 Conclusion; E. Conclusions on IP as 'objects'; Part VII. Conclusions to be Drawn from IPRs as Assets: A. Alienability vs. Inalienability of IPRs; B. Transfers and Securitazation of IPRs – The Impact of the 'NATURE' of the 'Legal object'; C. The Interface between the Transfer of IPRs and the Transfer of Copies of IP-Protected Subject Matter; D. 'Takings'/Expropriation of IPRs: 1. Introduction; 2. IPRs as protected subject matter under expropriation/takings rules; 3. What rights are protected against expropriation/'takings'? – the right to exclude or also the right (privilege) to 'use'?; 4. What constitutes an (unlawful) expropriation/'taking' of IPRs; 5. Conclusions; E. IPRs as Property in Assets vs. Other Fundamental Rights: 1. Introduction; 2. CJEU case law on IP as property vs. other fundamental rights; 3. ECtHR on the 'balancing paradigm'; 4. Discussion; F. Conclusions on IPRS as Assets; Part VIII. Final Conclusions.