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The Metaphysics of Intellectual Property Alexandra George* Faculty of Law, University of New South Wales, Australia

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The Metaphysics of Intellectual Property Alexandra George* Faculty of Law, University of New South Wales, Australia The Metaphysics of Intellectual Property Alexandra George* Faculty of Law, University of New South Wales, Australia Intellectual property; Jurisprudence Metaphysics and the nature of intellectual property “Patents and copyrights approach, nearer than any other class of cases belonging to forensic discussions, to what may be called the metaphysics of law, where the distinctions are, or at least may be, very subtle and refined, and, sometimes, almost evanescent.”— Justice Joseph Story1 Metaphysics is the branch of philosophy that deals with what something is and the nature of its existence. It helps to explain the world in which humans live, and it helps to underpin human interpretations and applications of knowledge. In his famous 19th Century reference to the seeming evanescence found in some of intellectual property law’s prominent doctrines, Justice Story signalled the importance of metaphysics to an understanding of this area of law. That is, without a philosophical appreciation of how the law is constructed and what it consists of, the law of patents and copyright—and also of trademarks, designs and other forms of intellectual property—can be very difficult to understand or use effectively. Without mindfulness of its metaphysics, the law risks incoherence and internal inconsistencies. Applied to intellectual property law, metaphysics considers the nature and form of intellectual property and the essence of its constituent parts.2 It looks at how intellectual property exists, the shape it takes and the constitutive properties of intellectual property laws.3 In a sense, metaphysics asks “what is special about intellectual property law?” or “what gives intellectual property law a distinct identity?” Particular discussions about how to answer these sorts of metaphysical or ontological4 questions may include reference to the imaginary nature of intellectual property objects,5 the ways in which legal concepts construct these objects, the typical structure of intellectual property doctrines, and any environmental or familial characteristics of intellectual property laws. Metaphysics’ concern with what “intellectual property” is contrasts with other philosophical methods found in the jurisprudence of intellectual property, such as epistemological explorations of the justifiability of beliefs about intellectual property6; political philosophy explorations of the role of intellectual property * This article draws and builds on a metaphysical approach to understanding intellectual property law that was published in Alexandra George, Constructing Intellectual Property (Cambridge: Cambridge University Press, 2012). The images included are reprinted with permission under Bigstock’s Standard Licence. 1 Folsom v Marsh 9 F. Cas. 342, 344 (C.C.D. Mass. 1841) (No.4,901). 2 This line of analysis draws on the branch of metaphysics known as “epistemological essentialism”. This argues that, to have a particular identity, an object must necessarily consist of essential characteristics or properties. Seeking to identify such traits would fall within the field of epistemological essentialism. 3 To the extent that such properties are abstract constructs that exist only as legal terms, the analysis falls within the branch of metaphysical essentialism known as “nominalism”. This draws on the school of “Platonic realism”, which argues that universals (i.e. properties necessary to a thing’s existence) can be ideas or concepts. 4 Ontology is a sub-branch of metaphysics that is concerned with the nature of existence, what exists and categories into which things that exist can be organised. The terms “ontology” and “metaphysics” are commonly used interchangeably. Barry Smith, “Ontology” in Luciano Floridi (ed.), Blackwell Guide to the Philosophy of Computing and Information (Oxford: Blackwell, 2003). 5 This line of analysis draws on the branch of metaphysics and epistemology (the latter term describing the study of knowledge and rational belief) known as “idealism”. This argues that reality is comprised of ideas or thoughts. It also draws on phenomenology, which describes objects in terms of the ways in which they are observed, experienced or dealt with by human consciousness. 6 An example might be assessment of the Lockean, Hegelian and economic theories that are often provided as justifications for intellectual property laws. Another epistemological approach involves empirical research that infers knowledge a posteriori from analysed data. 16 (2015) 7 W.I.P.O.J., Issue 1 © 2015 Thomson Reuters (Professional) UK Limited and Contributors The Metaphysics of Intellectual Property 17 law—and its concomitant rights—in mediating between the individual and society; or normative explorations of how intellectual property laws can be implemented to reflect underlying moral or political values. In outlining a metaphysical approach to the study of intellectual property law, this article considers the nature of intellectual property from various perspectives. First, it surveys common approaches to the definition of “intellectual property”. Secondly, it examines the “imaginary”, legally constructed nature of both intellectual property laws and the objects they regulate. Thirdly, it takes a structural approach to examine the constituent properties that are typically used by the law to build intellectual property doctrines. Fourthly, it suggests that, as the term “intellectual property” is used in ways that tend to embrace legal doctrines falling outside the typical structural framework, a useful method to extend exploration of the metaphysics of this area of law may be to adopt a contextual or “family resemblance” approach to explain what intellectual property is and the nature of its existence. Finally, the article closes with an exploration of challenges to the intellectual property law framework that are emerging in the face of technological advances, as well as a prediction as to how intellectual property’s metaphysical nature is likely to respond. Defining “intellectual property” If metaphysics deals with what something is and the nature of its existence, what is intellectual property? This section finds that the typical answers are somewhat unsatisfactory. “Intellectual property” is a “contested concept” in that it does not have a precise definition. Yet it is widely understood to convey an agreed meaning. For example, few would doubt that intellectual property is worth billions of dollars worldwide or that some of the most valuable assets of the most successful corporations are “intellectual property”. Coca-Cola and Pepsi, Apple and Samsung, Mickey Mouse, “Just do it” and the Nike “Swoosh”, Viagra and Cialis, the FIFA World Cup and Harry Potter: all connote “intellectual property”, and each is extremely valuable. But what is this thing we call intellectual property? While the term “intellectual property” has no settled definition, it is commonly described in imprecise—yet nonetheless generally accepted—ways that are not mutually exclusive. Each of these descriptions seems rather abstract, and none provides a full and satisfactory definition in itself. For example: • Enumerated approaches contend that intellectual property law is made up of copyright law, trademark law, design law, patent law etc. Each of these areas of law is generally considered to be an “intellectual property” doctrine because it awards property rights over abstract objects associated with tangible things—ideas or thoughts. This is a very common methodology, and it is used by many governmental and international intellectual property authorities to describe what “intellectual property” means.7 However, enumerated approaches do not explain the conceptual framework or other features that characterise intellectual property. They do not capture any essential or typical characteristics of intellectual property laws or objects, and they ultimately fail to explain determinative criteria that have led to the enumerated doctrines being listed under the intellectual property umbrella. • Property approaches contend that intellectual property is a type of property. While it is legally correct to say that intellectual property laws bestow “property” rights that owners can enforce against other people, many things are classified as “property”, and the term in itself says little about the nature of its subject matter. Adding the adjective “intellectual” 7 The website of the World Intellectual Property Organization, for example, states: “Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.” World Intellectual Property Organization, “What is Intellectual Property?”, available at http://www.wipo.int/about-ip/en/ [Accessed November 4, 2015]. (2015) 7 W.I.P.O.J., Issue 1 © 2015 Thomson Reuters (Professional) UK Limited and Contributors 18 The WIPO Journal suggests the property is intangible in nature, thus adding uncertainty to what “form” it takes.8 As the law could theoretically recognise any sort of object as “property” to which rights attach, the term “property” is arguably so broad as to become almost meaningless for the purposes of definition. In any event, the nature of property itself is very contested. If it is difficult to say what “property” is, and if people cannot agree on what it is, how useful is the notion of property—or of an “intellectual” type of property—as a definitional tool? • Related to both the enumerated and property approaches, rights approaches contend that intellectual
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