Robert Merges, ‘What Kind of Rights Are Intellectual Property Rights?’

… I begin by clearing up some misunderstandings about legal rights. The primary one is that rights are absolute. A secondary one is that one need do nothing to obtain or exercise a right, and that therefore any legal entitlement that requires affirmative steps to secure cannot be a right. Next I consider a prominent critique of the idea that IP rights are property rights, which holds that they are more akin to government regulation. After that I turn to an enumeration of the details of IP rights, described in the terms laid down by the prominent theorist of legal relations, Wesley Newcomb Hohfeld. From this I distill the key attributes of property as it applies to IP rights …

Merges, Robert P, What Kind of Rights Are Intellectual Property Rights? (March 17, 2017). Oxford Handbook of IP Law (R Dreyfuss and J Pila, eds), forthcoming.

First posted 2017-05-02 06:13:32

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