Julie E. Cohen (Georgetown University Law Center) has posted Post-Industrial Property on SSRN. Here is the abstract:
The idea of property in land as the paradigm case of property exercises despotic dominion over property thinking. From the perspective of evolving political economy, however, a land-centric model of property makes very little sense. Property institutions coordinate access to resources, and so it is reasonable to expect them to differ in ways that respond to the characteristics of those resources. The debate about whether intellectual property is property is instructive. Copyright and patent scholars have pursued the property debate using a conceptual framework derived from common law real property doctrines and organized around the practical and theoretical problems associated with property rights in land, but the resources at the center of contemporary intellectual property debates about the appropriate extent of rightholder control could not be more different from land. Intellectual resources are routinely sliced and diced, aggregated and fractionated, used and reused, in ways that land is not and could not be. This might mean that intellectual property is not property, as some have argued, or it might mean that we have outgrown the monolithic, land-centric model — that in the post-industrial era of wealth production, the cosmology of property can no longer place terra firma at the center.
This Article develops an account of property as a set of resource-dependent legal institutions characterized by overlapping sets of family resemblances and then reconsiders the intellectual property question. Property in intellectual goods — post-industrial property — resembles property in land in some respects, property in natural resources in other respects, property in corporations in others, and property in intangible financial instruments in still others, but also systematically diverges from each of those other forms of property. Legal institutions for intellectual property must accommodate four important points of divergence: the different incentives of creators and intermediaries; the variety of ways in which intellectual goods are produced; the central importance of intermediation within intellectual property ecologies; and the widespread use of licensing to delineate rights and obligations.
Highly recommended!