- The Oxford Handbook of Intellectual Property Law
- List of Contributors
- Intellectual Property Law: An Anatomical Overview
- The Basic Structure of Intellectual Property Law
- What Kind of Rights Are Intellectual Property Rights?
- Intellectual Property as a Public Interest Mechanism
- Intellectual Property and Human Rights: Mapping an Evolving and Contested Relationship
- Intellectual Property Incentives: Economics and Policy Implications
- The Emergence and Development of Intellectual Property Law in Western Europe
- The Emergence and Development of the International Intellectual Property System
- The Emergence and Development of United States Intellectual Property Law
- The Emergence and Development of Intellectual Property Law in Canada
- The Emergence and Development of Intellectual Property Law in Australia and New Zealand
- The Emergence and Development of Intellectual Property Law in Central and Eastern Europe
- Intellectual Property in Asia: ASEAN, East Asia, and India
- The Emergence and Development of Intellectual Property Law in the Middle East
- Three Centuries and Counting: The Emergence and Development of Intellectual Property Law in Africa
- The Emergence and Development of Intellectual Property Law in South America
- Patents and Related Rights: A Global Kaleidoscope
- Trade Marks and Allied Rights
- Design Protection
- Rights in Data and Information
- Overlapping Rights
- Intellectual Property Licensing
- Cross-Border Intellectual Property Enforcement
- Users, Patents, and Innovation Policy
- Traditional Knowledge, Indigenous Peoples, and Local Communities
- Intellectual Property, Development, and Access to Knowledge
- Workers in the “Groves of Academe”: The Claim of Academics to Copyright and Patents
- Intellectual Property Meets the Internet
- Intellectual Property and Competition Law
- Intellectual Property and Private Ordering
- Intellectual Property and Public Health
- Intellectual Property and Climate Change
Abstract and Keywords
This chapter considers the nature of intellectual property (IP) rights. It addresses some misunderstandings about legal rights, including that they are necessarily absolute, and rejects the view of IP as a regulatory tool rather than property. It then enumerates the key attributes and limits of IP using Hohfeld’s taxonomy of legal relations, and shows that, while none of these limits is enough to disqualify IP from being property, altogether they impose significant restrictions on its scope. Attention then turns to the problems of injunctions and constitutional takings of IP rights. The chapter concludes with observations about why, when properly framed, “rights talk” about IP does not inexorably point to absolutist views. The emphasis throughout is on two consistent thoughts: IP rights are real rights; but they are limited rights. They dominate some interests, but not all, and they are subject to restrictions and limitations that third parties also sometimes hold as rights.
Robert P Merges is Wilson Sonsini Goodrich & Rosati Professor of Law at the University of California, Berkeley.
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